Opinion 76-12

July 23, 1976

Re: Canon 3C

Dear Judge:


This is in response to your recent letter regarding your possible disqualification as a judge in the appellate court as a result of appeals taken by the public defender's office with whom your son is presently employed.

Specifically, you indicate that your son is now employed by the public defender of the ______ Judicial Circuit with the primary responsibility of handling matters in the county Court. You further indicate that many of the appeals to your court by the public defender's office of the fourth circuit are conducted by the public defender of the second circuit. Both circuits are in your appellate jurisdiction. Additionally, you observe that an appeal does not lie directly form the county court to the appellate court and that such cases reach the appellate court only by way of certiorari.

Your inquiry poses the following questions:

"1. Should I disqualify myself in each case in which the Public Defender of the Second Circuit for Fourth Circuit is involved?

2. If the answer to the proceeding query is in the negative, must I disqualify myself in each case in which the Public Defender of the Fourth Circuit is involved?

3. If the answer to both of the proceeding queries are in the negative, must I disqualify myself in each case in which the Public Defender of the Fourth Circuit is involved and which arises from a county court proceeding?"

The Committee has reviewed your inquiry with particular regard to Canon 3C which sets forth with particularity those circumstances and specific instances under which a judge must disqualify himself in a proceeding. The Committee unanimously is of the opinion that questions 1 and 2 should be answered in the negative.

Specifically, the Committee is of the opinion that Canon 3C does not require your disqualification in those cases in which the public defender of either the second of fourth circuit is involved. This presupposes that the record does not reflect participation by your son in any aspect of the proceeding which is the subject matter of the appeal in which the public defender of either the second or fourth circuit is involved.

As to question 3, a majority of the Committee (5-1) is of the opinion that you would be required to disqualify yourself only in those instances where your son participated in the trial of a proceeding in the county court which is being appealed to your court.

The Committee directs your attention to the Commentary immediately following Canon 3C(d)(ii):

"The fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that 'his impartiality might reasonably be questioned' under Canon 3C(1), or that the lawyer relative is known by the judge to have an interest in the law firm that could be 'substantially affected by the outcome of the proceeding' under Canon 3C(d)(iii) may require his disqualification."

The Committee further recognizes that your son's participation in any aspect of the trial or appellate proceedings as an attorney of record thereby necessitating your disqualification will perhaps place a greater burden on the other members of your court; nevertheless, the integrity of the judiciary outweighs the inconvenience of such burden.

We appreciate your interest 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: Hewitt, Mason, Murphee, Stephenson and Thomas MacDonald, Esquire