What are a lawyer's ethical obligations under the Code of Professional Responsibility when the presiding judge in a case is the uncle of the lawyer's law partner?

Plain-English summary

The inquiry concerned the ethical obligations of lawyers litigating criminal matters where the presiding judge is the uncle of a law partner involved in the case. The opinion identified Canons 3(C)(1), 3(C)(1)(d)(iii), and 3(D) of the Code of Judicial Conduct as the controlling authorities. Under those Canons, a judge should disqualify when the judge's impartiality might reasonably be questioned, including where the judge, the judge's spouse, or a person within the third degree of relationship to either (or that person's spouse) is acting as a lawyer in the proceeding. The Judicial Code's commentary clarifies that a lawyer in the proceeding being affiliated with a firm that includes a lawyer-relative of the judge does not, by itself, disqualify the judge; however, disqualification may still be required if the judge's impartiality might reasonably be questioned under Canon 3(C)(1), or if the judge knows the lawyer-relative has an interest in the firm that could be substantially affected by the proceeding's outcome under Canon 3(C)(1)(d)(iii). Canon 3(D) allows a disqualified judge, instead of withdrawing, to disclose the basis for disqualification on the record; if the parties and lawyers then independently agree in writing that the relationship is immaterial, and that agreement is signed by all parties and lawyers and made part of the record, the judge is no longer disqualified and may participate.

The opinion applied Disciplinary Rule 1-102(A)(5) of the Code of Professional Responsibility, which requires lawyers to comply with these Judicial Code Canons in litigation where the presiding judge is the uncle of a law partner, and found the lawyers' ethical obligations the same in criminal matters as in civil matters. The opinion noted that the Ethics Committee and the Board have no jurisdiction over matters under the Code of Judicial Conduct itself, so the opinion addresses only the lawyers' obligations under the Code of Professional Responsibility.

Currency note

This opinion was issued in 1985, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a judge automatically step aside if a litigating lawyer's partner is the judge's relative?

A: Not automatically. The opinion explains that mere affiliation with a firm that includes a lawyer-relative of the judge does not by itself disqualify the judge, though disqualification may still be required if the judge's impartiality might reasonably be questioned or the relative's firm interest could be substantially affected by the outcome.

Q: Can the parties waive the judge's disqualification based on the relationship?

A: Yes, under Canon 3(D): the judge may disclose the basis for disqualification on the record, and if the parties and lawyers independently agree in writing that the relationship is immaterial, with that agreement signed and made part of the record, the judge may participate.

Q: Does it matter whether the case is criminal or civil?

A: No. The opinion found the lawyers' ethical obligations under the Code of Professional Responsibility to be the same in criminal matters as in civil matters.

Background and rules framework

The opinion applied Disciplinary Rule 1-102(A)(5) of the Code of Professional Responsibility, which incorporates compliance with Canons 3(C)(1), 3(C)(1)(d)(iii), and 3(D) of the Code of Judicial Conduct governing judicial disqualification based on relationship to counsel. The modern correlate is Model Rule 8.4 (misconduct, including conduct prejudicial to the administration of justice), cited here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• Disciplinary Rule 1-102(A)(5), Code of Professional Responsibility (compliance with the Code of Judicial Conduct)
• Canons 3(C)(1), 3(C)(1)(d)(iii), and 3(D), Code of Judicial Conduct (judicial disqualification and waiver based on relationship to counsel)

See also

• ABA Formal Op. 488: Judges' Social or Close Personal Relationships With Lawyers or Parties as Grounds for Disqualification or Disclosure

Source

• Landing page: https://www.tbpr.org/ethic_opinions/85-f-84

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

85-F-84 - Judge Related to Law Partner

BOARD OF PROFFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 85-F-84

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.

ETHICS COMMITTEE:

Charles T. Herndon, III

T. Maxfield Bahner

G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD