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September 4, 1996

 

 

The Honorable Kathleen Bell Corrected Copy 9-6-96
Chancery and Probate Judge
First Judicial Circuit of Arkansas
P.O. Box 3588
West Helena, Arkansas 72390 

RE: Advisory Opinion 96-07

Dear Judge Bell:

In your letter of August 22, 1996, you state that your recently hired certified court reporter is married to an attorney who practices before your court. You have inquired about the potential conflict of interest and the necessity for disqualification.

Canon 3 (E) of the Arkansas Code of Judicial Conduct governs disqualification by judges. Since none of the four specific provisions are applicable to your situation, the governing language is that "a judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. . ." Likewise, a judge should avoid even the appearance of impropriety. Canon 2. However, no reasonable person can conclude that a judge will favor a client because the client's attorney is the spouse of the court reporter.

Another concern is possible collusion between the spouse and the court reporter. However, the provisions of Canon 3 (B) emphasize the judicial obligation to ensure that court personnel carry out their duties faithfully.

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, it is our opinion, that although disqualification is not required, in each instance in which the spouse of the court reporter is the attorney of record, you should disclose on the record the relationship between the court reporter and the attorney. The obligation then shifts to the opposing party to make any motions deemed necessary. See Advisory Opinions 94-47 of New York and 95-535 of Alabama. 

Sincerely,

 

Howard W. Brill

For the Committee

 

Judge Steele Hays and
Judge Edwin Alderson Concur



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