Informal Opinion 97-2
April 10, 1997

The Ethics Advisory Committee has been asked for its opinion on whether an appellate court judge must enter disqualification in the following four circumstances:

1. When the judge's son has an offer for a summer clerkship with a firm appearing before the judge, but the clerkship has not yet started;

2. When the son is working as a summer associate (law clerk) at the firm;

3. When the son has accepted a position as an associate with the firm, but has not yet started working; and

4. When the son is working as an associate at the firm.

The relevant provisions of the Code of Judicial Conduct are Canons 2B and 3E. Canon 2B states that "a judge shall not allow family, social, or other relationships to influence the judge's judicial conduct or judgment." Canon 3E(1)(d) states that a judge shall enter disqualification when "the judge's impartiality might reasonably be questioned." The Canon states that this includes situations in which a person within the third degree of relationship to the judge "is acting as a lawyer in the proceeding" or has "more than a de minimis interest that could be substantially affected by the proceeding." When dealing with a relative within the third degree, such as a son, disqualification is therefore required in the following three circumstances:

1. When the relative is acting as a lawyer in the proceeding;

2. When the lawyer has an interest in the proceeding that is not de minimis that could be substantially impacted; or

3. When the judge's impartiality might otherwise be reasonably questioned.

In Regional Sales Agency v. Reichert, 830 P.2d 252 (Utah 1992), the Utah Supreme Court faced the issue of whether an appellate court judge must enter disqualification when a firm appearing before the judge employed the judge's father-in-law and brother-in-law as partners, even though another attorney with the firm had exclusive responsibility for the case. The Court stated that disqualification would clearly be required if the firm's fee was contingent on the outcome of the case. Disqualification would also be required when the attorneys' compensation, through profit sharing or other mechanisms, might ultimately be affected by the outcome. The Court stated, however, that it would be an "expensive and time consuming inquiry" to determine in every case whether the partner had a direct interest in the outcome of a particular case. Id. at 257. Because of that difficulty, the Court adopted "a bright-line proscription" extending disqualification to "every situation where a judge sits on a case in which the judge's relative is a partner or otherwise an equity participant in a firm that represents a party to the case." Id.

The Reichert Court did not have before it the situation of associates, but addressed it briefly, noting that "the simple model of an associate's drawing a fixed salary may not fit all firms." Id. at 258. The Committee also recognizes that an associate's compensation might depend significantly on factors similar to those used to establish partner or shareholder compensation. Even absent such an explicit arrangement, a firm's ability to offer raises or pay Christmas or year-end associate bonuses, or, ultimately, to make payroll is directly related to its financial success. Not only would inquiry into an associate's compensation package be "expensive and time consuming," but it is awkward for the judge or the court to inquire about the internal financial arrangements of a law firm. Even if satisfied that any financial interest was de minimis, the judge or the court would have to inquire about whether the associate or clerk had worked on the case, which itself can be awkward given the restrictions on ex parte communication, and rely uncritically on the information received. Finally, even if the judge were convinced that the relative had only a de minimis financial interest in the case and had no substantive involvement in the case, the judge would have to be concerned about perceptions of partiality and consider whether the same would be reasonable under the circumstances. See Informal Opinion No. 94-4 ("The general test as to whether a judge's impartiality might reasonably be questioned is whether a person of ordinary prudence in the judge's position knowing all the facts known to the judge would find that there is a reasonable basis for questioning the judge's impartiality.")

Accordingly, rather than leave each judge to navigate these principles on a case-by-case, associate-by-associate basis, the Committee believes it is best to extend Reichert's bright-line to associates, including summer associates. Thus, a judge should enter disqualification in every situation where a judge's relative within the third degree of consanguinity is employed by a law firm as a law clerk or an associate.

In issuing this opinion, the Committee is motivated in large measure by its goal of offering solutions which enhance predictability and ease of application, while promoting confidence in the judiciary and the impartiality of its processes. The Committee errs on the side of caution and circumspection. At the same time, the Committee recognizes that this opinion may go beyond what had been contemplated in prior opinions. See, e.g., Informal Opinions 90-3, 92-3. It may embrace a stricter interpretation of the Code of Judicial Conduct than is reflected in Reichert or is otherwise necessary.

Accordingly, the Committee's opinion applies prospectively only and not to cases already far along, where the disruption of a late recusal would be a greater evil than the potential -- and often remote -- evil that this opinion seeks to address. Moreover, the Committee notes the possibility for remittal of disqualification, even prospectively, in accordance with Canon 3F.

In answer to the four specific questions that have been asked, the Committee is of the opinion that disqualification is required as soon as the relative is employed by the firm and is drawing compensation. Disqualification is therefore required when the son is working as a law clerk or as an associate at the firm, but disqualification is not required when the son is not actually employed by the firm. Disqualification is not required when an offer is pending or when the offer has been accepted, but employment has not yet begun.