STANDING COMMITTEE ON JUDICIAL ETHICS AND ELECTION PRACTICES DATE ISSUED: July 2010 OPINION NO.: JEl0-004 PROPRIETY OF A NEVADA DISTRICT PRESIDING IN CASES IN WHICH THE ATTORNEY FOR A PARTY IS A MEMBER OF, OR ASSOCIATED WITH, THE LAW FIRM RETAINED TO REPRESENT THE JUDICIAL DISTRICT IN EMPLOYMENT LAW MATTERS. Are Dtrict Judges of a particular Judicial Dtrict dqualified from or required to make dclosures and obtain consent in presiding in cases in which a party represented by an attorney who a member of, or associated with, law firm that has been retained by such Judicial Dtrict? ANSWER No, with qualifications and exceptions. In certain instances dqualification required and dclosure and consent may be made and obtained in appropriate instances. A Judicial Dtrict has retained an attorney to provide employment law advice and representation in connection with Dtrict's personnel and human resource matters. The Chief Dtrict Judge and anor Dtrict Judge have been selected to adminter engagement between employment and Judicial Dtrict. Hr>rncnr retained JS a in a law firm. who are members and associated with, th law firm in unrelated matters on behalf of clients before The Committee authorized only to render an opinion that evaluates compliance with requirements of Nevada Code of Judicial Conduct ( "NCJC"). Rule 5 Standing Committee On judicial Ethics & Election Practices. Accordingly, th opinion limited by authority granted by Rule 5. The question presented here implicates Canon 2. That canon states "[a) judge shall perform duties of judicial office impartially, competently, and diligently. Nevada Code of Judicial Conduct, Canon 2. Under Canon 2, subject of dqualification addressed in Rule 2.11. The pertinent parts of Rule 2.11 to question presented here provide: (A) A judge shall dqualify himself or herself in any proceeding in which judge's impartiality might reasonable be questioned, including but not limited to following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dpute in proceeding. A subject to dqualification under th Rule, or than for bias or under may dclose on record bas of dqualification and may ask and ir lawyers to consider, outside presence of judge and court staff, court officials and ors 1
direction and with a in that earlier instance dealt Nevada Code of Judicial Rule 2.1 & may The Canon 2, The Standing Committee has previously opined on analogous judicial ethical requirements under previous canons. In our Opinion JE99-007, we concluded that all of Dtrict Judges of a particular Judicial Dtrict must dqualify mselves when specific deputy attorney general representing judges in a lawsuit appeared before a judge of that dtrict as counsel of record in an unrelated matter. Advory Opinion No. f 99-007 Ganuary 12, 2000}. In that opinion, Standing Committee determined, however, that dqualification did not extend to every case handled by a member of Office of Attorney General of Nevada and we also noted that because case involved claims against judges in ir official capacity, dqualification could be waived under a similar to dclosure and consent like that set forth in Rule In Committee was asked to revit sue of dqualification from of an entire dtrict. There, we that Dtrict of a Dtrict decide on an individual case bas to dclose and allow consent in a such as under Rule 2.1 As a threshold matter, we note that Canon 2 and Rule 2.11(A)(1) a Dtrict Judge to dqualify in any situation where harbors actual bias or prejudice. Accordingly, in connection with sue here presented, a Dtrict Judge "shall" be dqualified if y have "a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dpute in proceeding." Th a decion that jurt must reach searching ir conscience and based on specific facts known to m, given relationship with or representation by retained employment lawyer. In broader context of applying Rule 2.11, however, each of Opinion JE99-007 and JE07-001, as well as in th case, we do not deal with actual bias, but instead critical sue wher judge's impartiality might reasonably be questioned. The Supreme Court of Nevada has explained that under Rule 2.11, "a dqualified whenever judge's impartiality might reasonable be questioned, of wher any of specific paragraphs (A)(l) through [1] to Rule 2.11. In situations where for a Committee articulated in and The rationale for that conclusion based on nature of between 2
reliance and as committees has that and client. That on of would be hard to would not be was firm of record in a matter before h>t'r>r Dt::>hr>r> of canon appears f"'()!n<:i<:t<5>ntl ~ Ethics Board, Colorado Supreme Court, No. (July 12, 2006); Washington Ethics Op. No. 95-12 (March 10, Illino Judicial Ethics Committee, Op. No.03-05 (October 23, 2003). Applying th standard here, Standing Committee concludes that in any instance where a particular Dtrict Judge within Judicial Dtrict receiving legal counsel, advice or representation by retained employment lawyer, that Dtrict Judge must dqualify himself or herself pursuant to Rule 2.11(A) from presiding in a case where retained employment lawyer represents a party in that case. Under facts here suggested, that dqualification would extend to Chief Dtrict Judge and or specific Dtrict Judge who has been selected to adminter engagement between employment lawyer and Judicial Dtrict. These two jurts are client representatives of Judicial Dtrict and persons in dose professional relationship with employment attorney. The Standing Committee concludes it would be difficult to imagine a litigant who question when actually receives legal advice or r<>rw"'""n from Our determination in th rule of Court has rule of Rule 2.1 1. The Committee views or among various Dtrict retained and h or her law firm to a Th assessment rests on rationale that in se or contexts intimacy of relationship of attorney and client much more attenuated, if not nonextent. Thus, question of dqualification must consider a variety of factors that influence wher judge's impartiality might reasonably be questioned in accordance with Canon 2. Our ster advory committees have also grappled with th sue and among those evaluations we are particularly convinced by standard articulated by Arizona Judicial Ethics Advory Committee. The Arizona Committee has identified a three-prong test to apply absent actual bias in determining wher a reasonable person would question impartiality of a judge who presides over a case involving an attorney with anor connection with judge. The test examines "(1) directness of relationship between attorney and judge; (2) substance of relationship; and (3) length and ongoing nature of relationship." Arizona Supreme Court, Judicial Ethics Advory Committee, Op. No. 92-11 (September 9, 1992). Applying th three-prong test, Arizona Advory Committee concluded that a trial judge could reasonably conclude that he was not required to dqualify himself where selected by an insurer to in a tort case was a member of same law firm law firm a party in an medical nr:>l"t!f'o case before judge. id. 3
The those ttot and one and h or her law firm indirect because client Dtrict and relationship of client and wholly admintered Chief Dtrict Judge and or specific jurt. The substance of relationship between non-client representative Dtrict Judges and employment lawyer or h or her law firm some or lawsuit and not related to employment or human resources matters for which Judicial Dtrict has retained lawyer and firm. While relationship will ostensibly be on-going, Dtrict Judges who have no involvement in admintering employment law engagement typically would have no direct knowledge of, or involvement with, legal representation. The Standing Committee embraces in proper context three-prong test articulated above because we believe th standard properly balances jurts' obligations of impartiality under Canon 2 with equally important duty of judiciary to perform its elected duties to adjudicate cases. Ham v. Dtrict Court, 93 Nev. 409, 415, 566 P.2d 420, 424 (1977)(duty to sit); Las Vegas Downtown Reder.'. Agency v. Hecht, 113 Nev. 644, 940 P.2d 134 (1977)(standard for judicial dqualification). Although Ham and Hecht decions interpreted an earlier version of Nevada Judicial Canons, we believe Nevada Court would continue substance of se in Rule 2.11. In th regard, Rule 2.11(C) importantly a for any instance where one of non-client Dtrict stated that: concerns in a The Nevada instance or Court has A should dclose on record information that ir consider relevant to a motion for even if judge believes re uo bas for dqualificatimt. A making such a dclosure should, where practicable, follow procedure set forth in Rule 2.11(C). Commentary [5] to Rule 2.11 (emphas added). In dcretion of individual jurt, he or she may make dclosure of attorney and client relationship between Judicial Dtrict and employment lawyer and law firm. The procedure permitted under Rule 2.11(C) will provide transparency in any case where facts warrant heightened sensitivity to perceptions of judicial impartiality or where individual jurt believes dclosure and consent appropriate in h or her independent judgment. See, ~ Advory Op. No. f 07-001 (March 15, 2007); Arizona Supreme Court, Judicial Ethics Advory Committee, Op. No. 92-11 (September 9, 1992). CONCLUSION All of Dtrict Judges of a particular Judicial Dtrict are not dqualified from presiding in cases in which a party an attorney who a member of, or associated with, law firm that has been retained by such Judicial Dtrict. Where a particular Dtrict within Dtrict legal counset advice or representation by retained employment including Dtrict between 4
a on circumstances of a case or in dcretion of a Dtrict dclosure and consent procedure of Rule 2.11 orwe would be appropriate or may be employed. Rule 5 Governing Standing Committee On Judicial Ethics & Election Practices; Nevada Code of Judicial Conduct, Canon 2, Rule 2.11(A)(1) & Rule 2.11(C); Commentary [1], /31 & [5] to Rule 2.11; Ham v. Dtrict Court, 93 Nev. 409, 415, 566 P.2d 420, 424 (1977); Las Vegas Downtown Redev. Agency v. Hecht, 113 Nev. 644, 940 P.2d 134 (1977); Advory Opinion No. JE07-001 (March 15, 2007); Advory Opinion No. JE99-007 Oanuary 12, 2000); Judicial Ethics Advory Board, Colorado Supreme Court, Op. No. 06-05 Guly 12, 2006); Judicial Ethics Advory Committee, Florida Supreme Court, Op. No. JE05-15 (October 19, 2005); Illino Judicial Ethics Committee, Op. No.03-05 (October 23, 2003); Washington Ethics Advory Committee, Op. No. 95-12 (March 10, 1995); Arizona Supreme Court, Judicial Ethics Advory Committee, Op. No. 92-11 (September 9, 1992).. Th opinion sued by Standing Committee on Judicial Ethics and Election Practices. It advory only. It not binding upon courts, State Bar Nevada Commsion 011 judicial tribunal with any member or u_1hich Dan R. Reaser, Chairperson 5