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May a judge preside over criminal cases if their spouse works for the state attorney’s office?

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They can as long as the spouse has no supervisory role over the assistant state attorneys

OSCA logoA judge may preside over criminal cases where the judge’s spouse serves as the executive director at a state attorney’s office but does not supervise any attorney appearing before the judge, according to the Judicial Ethics Advisory Committee.

The advisory panel acted November 13 in Opinion Number: 2023-09. The inquiring judge currently presides over a docket that includes circuit and county criminal cases. The judge’s spouse, who is a lawyer, has been asked to serve as executive director of the state attorney’s office, an administrative post.

“The inquiring judge is aware of our past opinions that conclude that a judge’s spouse serving as a supervisor to any lawyer appearing before the judge would require disqualification,” the panel said. “Here, however, the judge advises the Executive Director’s job will not involve supervising any lawyers. Instead, the Executive Director is responsible for administrative functions including finance, human resources, information technology, supervising non-attorney staff, etc.”

“The fact that the judge’s spouse will have some non-supervisory contact with assistant state attorneys related to administrative matters is not disqualifying,” the JEAC held.

“As long as the judge’s spouse does not decide to assist in any way in the prosecution of any case before the inquiring judge, disqualification is not required,” the panel said. “However, if the inquiring judge’s spouse offers any assistance or participates in any way in the prosecution of any case before the judge, disqualification is required. Additionally, if the circumstances of any case somehow place the judge’s impartiality in question, the judge should disqualify.”

The Judicial Ethics Advisory Committee is charged with rendering advisory opinions to judges and judicial candidates on the application of the Code of Judicial Conduct to their circumstances. While judges and candidates may cite the opinion as evidence of good faith, the opinions are not binding on the Judicial Qualifications Commission.

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