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January 24, 2000

 

William P. Watkins
Watkins & Scott, PLLC
1110 West Poplar, Suite B
Rogers, AR 72756

RE: Advisory Opinion 2000-01

Dear Mr. Watkins:

Your letter informs us that you, or your law partner, occasionally (perhaps once a month) sits as a special judge in a municipal court. Your firm has recently hired an associate, who is the wife of the deputy prosecuting attorney charged with handling misdemeanor cases in the same municipal court.

Under the Arkansas Code of Judicial Conduct you serve as a "Pro Tempore Part-time Judge". Under the Application section of the Code, a pro tempore part-time judge is not bound by all provisions of the Code. However, the disqualification provisions of Canon 3(E) are applicable to you. The official Commentary states that the Code does not require automatic recusal of the judge merely because a relative of the judge is a member of a law firm appearing before the judge. In accord with that language, we conclude that disqualification is not required when a member of your firm is married to the deputy prosecuting attorney appearing before you.

However, as we have stated in Advisory Opinion 96-07, the underlying issue in Canon 3(E) is whether your impartiality might reasonably be questioned. The Commentary to Canon 3(E)(1) states that "a judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification." Accordingly, we recommend that you disclose on the record that a member of your firm is married to the prosecutor appearing in court. The responsibility then shifts to the defense attorney to request recusal. Upon such a motion, you may rule upon the merits of the motion according to the governing case law. Likewise, you may advise the parties of the availability of Canon 3(F) Remittal of Disqualification.

Sincerely,

 

Howard W. Brill

For The Committee


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