Opinion 76-23

November 24, 1976

Re: Canon 5C

Dear Judge:


This is in response to your recent letter inquiring about the necessity of disqualifying yourself in all litigation involving a law firm which currently represents your wife's corporation.

You indicate that your wife is principal officer in a nonprofit corporation which was involved in a lawsuit. You also indicate that you were also named as a defendant inasmuch as you were member of the Board of Directors at the time of the suit. You advise that you have since resigned from the Board of the corporation and have absolutely no connection, financial or otherwise, with the corporation. You further advise that after the aforementioned suit was filed you immediately disqualified yourself sua sponte in all litigation pending in your division in which the law firm representing your wife's corporation was involved. You state that the lawsuit is now settled and dismissed but the law firm will continue to represent the nonprofit corporation on a regular retainer in the future.

Specifically, you inquire whether you must continue to disqualify yourself in all matters involving this law firm although the firm does not represent you in any fashion and although you have no direct or indirect interest of any kind in the nonprofit corporation.

The Committee has reviewed your inquiry and is of the opinion (8-1) that based upon the factual circumstances as heretofore outlined there is no requirement under the Code of Judicial Conduct that you continue to disqualify yourself from all matters involving a lawyer or law firm that previously represented you and that now represents a nonprofit corporation in which your wife is a principal member (and with which corporation you have no direct or indirect interest).

One member of the Committee observed that judges should regulate their activities so as to avoid the necessity of being involved in any litigation and invariably disqualification. However, where legal representation is provided to the judge, permanent disqualification should not result once the litigation or representation terminates. If a judge were required to disqualify himself in all matters involving attorneys who once represented the judge, it could conceivably result in a situation where law firms and lawyers would refuse to provide legal representation to a judge.

One member, without expressing an opinion one way or the other, specifically calls attention to the possible application of Canon 3C(1)(c) and 3C(1)(d)(1) as possibly necessitating disqualification under certain circumstances.

We appreciate your inquiry and trust the foregoing will be of assistance to you.

Sincerely,


Gerald Mager


Chairman, Committee on Standards of Conduct Governing Judges

GM/cs

Participating members: Boyer, Carlisle, Haverfield, Hewitt, Murphee, Sample, Stephenson and Thomas MacDonald, Esquire