JUDGE'S SON AS MEMBER OF FIRM

Opinion No. 29 (1978)*


QUESTION: Does a judge violate the Code of Judicial Conduct in participating in the trial of a case when one of the lawyers is a member of a firm in which his child is also a partner?

ANSWER: Subject to the opening words in Canon 3C(1),"A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to, instances where: [followed by three subdivisions]," the Committee is of the unanimous opinion that the question should be answered in the negative.

Canon 3C(1), and subdivisions (a), (b), and (c) thereof were lifted word for word from the Canons of Judicial Ethics adopted by the American Bar Association in 1982. We are of the opinion that it is significant that ABA Canon 3C(1) contains a fourth subdivision which is not to be found in our canons, reading as follows:

"(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person:

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(ii) is acting as a lawyer in the proceeding."

Professor E. Wayne Thode, reporter for the ABA committee which formulated the ABA canons, comments on subdivision (d) of the ABA canon, supra, in "Reporter's Notes to Code of Judicial Conduct" (ABA, 1973), p. 15:

"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(1)(d)(iii) may require his disqualification."

The Committee adopts Professor Thode's analysis as applicable to the Texas Code of Judicial Conduct.

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*Provisions relating to recusal and disqualification were removed from Canon 3C effective January 21, 1987. See Rules 18a and 18b, Texas Rules of Civil Procedure.