Inquiry is made concerning the ethical obligations of lawyers in litigating criminal matters wherein the presiding judge is the uncle of a law partner.
Canons 3(C)(1), 3(C)(1)(d)(iii) and 3(D) of the Code of Judicial Conduct are the controlling authorities concerning the litigation of matters wherein the presiding judge is the uncle of a law partner involved in the litigation. The Code of Judicial Conduct provides that a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person is acting as a lawyer in the proceeding. The commentary to the Judicial Code states that 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, itself, disqualify the judge; however, under appropriate circumstances, the fact that his impartiality might reasonably be questioned under Canon 3(C)(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 3(C)(1)(d)(iii), his disqualification may be required. Canon 3(D) provides that a disqualified judge may, instead of withdrawing, disclose on the record the basis of his disqualification; and, based on such disclosure, if the parties and lawyers, independently of the judge's participation, all agree in writing that the judge's relationship is immaterial, the judge is no longer disqualified and may participate in the proceeding. Such an agreement is required to be signed by all parties and lawyers and incorporated in the record of the proceedings.
Disciplinary Rule 1-102(A)(5) of the Code of Professional Responsibility requires the lawyer to comply with Canons 3(C)(1), 3(C)(1)(d)(iii) and 3(D) of the Code of Judicial Conduct in all litigation wherein the presiding judge is the uncle of a law partner. The lawyers' ethical obligations in criminal matters are no different than in civil matters in such instances.
The Ethics Committee and the Board of Professional Responsibility have no jurisdiction in matters involving the Code of Judicial Conduct and, therefore, this opinion is only intended to relate to the ethical obligations of lawyers pursuant to the Code of Professional Responsibility.
This 2nd day of January, 1985.
Charles T. Herndon, III
T. Maxfield Bahner
G. Wilson Horde
APPROVED AND ADOPTED BY THE BOARD