November 17, 1992

The Ethics Advisory Committee has been asked for its opinion as to whether a trial judge must be disqualified from all cases in which the law firm that employs the judge's father in an "of counsel" capacity represents a party to the case, if disqualification is not required in all such cases, the judge has asked whether the judge should disclose the relationship to the parties and counsel, and if such disclosure is advisable, the judge has asked the Committee to provide guidance in drafting the disclosure notice. According to the opinion request, the judge's father receives only a salary and deferred compensation, is not currently a shareholder, partner, officer or director of the firm, and has no capital interest in the firm.

Canon 3C provides, in pertinent part, as follows:

C. Disqualification.

(1) Disqualification must be entered in a proceeding by any judge whose impartiality might reasonably be questioned, including but not limited to instances where:

(d) The judge or spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding . . . .

In Regional Sales Agency v. Reichert, 830 P.2d 252 (Utah 1992), the Supreme Court concluded that a judge's relative within the third degree of relationship has an "interest that could be substantially affected by the outcome" in every situation where a judge sits on a case in which the relative is an equity participant in a firm that represents a party. Although Regional Sales Agency clearly involved relatives who were equity participants, the Supreme Court noted that to the degree that a "significant proportion" of a non-equity participant's salary depended on factors similar to those used in fixing partners' or shareholders' salaries, disqualification might nevertheless be required by the Code. Id. at 258.

In the instant matter, the judge's father is "of counsel." As stated in Regional Sales Agency, the father's title is not dispositive. Rather, it is the method of establishing the father's compensation that drives the disqualification determination. If the father's salary and deferred compensation are fixed regardless of the firm's profits, disqualification is not required. On the other hand, if either the father's salary or deferred compensation is dependent on the firm's profits, and if the portion of the father's compensation that is dependent on profits is a "significant proportion" of the father's total compensation, disqualification is required in every case. There may be interests other than financial interests which could affect disqualification but which are not addressed in this opinion, and a judge should consider those interests in deciding whether or not to disqualify.

Canon 3D recognizes that even required disqualifications may be waived by the parties, and establishes the following process for submitting such waivers:

A judge may, instead of withdrawing from the proceeding, disclose on the record or in writing the basis of the disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge's participation, all agree that the judge's relationship is immaterial or that the financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement of the parties must be entered on the record or, if written, signed by all the parties and included in the case file.

Even where disqualification is not required because the judge's relative is not an equity participant, the judge may wish to utilize Canon 3D to ensure that all parties are informed of the relationship between the judge and the relative. The Committee believes that a written disclosure could be sent to all parties indicating the nature of the judge's relationship to the attorney, the nature of the attorney's relationship to the firm, and the fact that disqualification is not required by the Code.