January 25, 1995

The Ethics Advisory Committee has been asked for its opinion as to whether a judge whose spouse serves as an assistant attorney general must disqualify from cases in which another attorney from the attorney general's office appears before the judge.

The attorney general's office consists of nearly 150 attorneys with offices throughout the state. The judge's spouse is assigned to one of approximately 15 divisions. The spouse's division is further separated into three sections. Attorneys occasionally transfer from one section to another, or from one division to another. In addition to representing other state agencies, certain lawyers in the attorney general's office have supervisory authority over the judge's spouse. Unlike the compensation structure in a private law firm where an attorney's financial remuneration is often affected by the outcome of a case handled by another member of the firm, no such connection exists between the spouse's salary and the outcome of a case handled by another member of the attorney general's office. See Utah Code Ann. 67-8-3(3) (1993) (outlining criteria to determine salary of career status attorneys).

Disqualification questions are governed byCanon 3E. A portion of that Canon provides that a judge shall disqualify in a proceeding in which the judge's spouse is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding. To the extent a judge's spouse's salary may be affected by the outcome of a proceeding before the judge, it constitutes such an interest. Regional Sales Agency v. Reichert, 830 P.2d 252 (Utah 1992). Here, however, because the spouse's salary will not be affected by the outcome of any proceeding before the judge in which another assistant attorney general may appear. there is no pecuniary interest that would require disqualification.

More generally, Canon 3E requires disqualification where the judge's impartiality might reasonably be questioned. The test for whether a judge's impartiality might reasonably be questioned is whether a person of ordinary prudence knowing all the facts known to the judge would find a reasonable basis for questioning impartiality. Informal Opinions 88-3 and 89-2.

In Opinion 88-3, this Committee determined that a judge, whose spouse was employed by the legal defender's office, must disqualify from all cases in which any legal defender from that office appeared. However, the Opinion was based on the conclusion that the legal defender's office in question was more akin to a small law firm than a large government agency. The Opinion recognized that some government agencies, by virtue of the number of attorneys which they employ, do not have the same opportunity for association and information sharing that exists in a small office."

In Opinion 99-2, this Committee determined that a judge need not disqualify from every case brought by a county attorney's office which employed the judge's daughter as a part-time secretary. However, disqualification was required if the daughter participated in the case in a substantive manner or if the daughter's salary would be affected by the outcome of the case.

Here, due to the large number of attorneys employed, the geographic separation, and the divisional organization, the Committee does not believe that the Canon requires disqualification in every case in which any assistant attorney general appears. In particular cases where the association of the spouse and the responsible attorney is known by the judge to be close or where the judge otherwise believes partiality or the appearance of partiality may exist, the judge is required to disqualify. In addition, in order to avoid any question about the judge's impartiality, the judge in every case where the attorney general's office represents a party, shall disclose the spouse's employment, and any other relevant facts and circumstances, and allow the parties to take any action they deem appropriate.