Kissin Cousins

The South Carolina Advisory Committee on Standards of Judicial Conduct opines that a law firm is not automatically disqualified where a member is a first cousin of the judge

A circuit court judge has a first cousin who is a partner in a large law firm that practices frequently in the judge’s home circuit. The judge does not know the details of the cousin’s partnership or how the partners are compensated. While the judge acknowledges that he/she cannot preside over matters in which the cousin appears as counsel, the judge inquires as to whether he/she is precluded from hearing any matters in which other members of the firm appear as counsel.

Opinion

In Opinion 8-2012, we considered the matter of a family court judge whose niece and nephew were lawyers in a firm in the same area as the judge. We found that the judge was disqualified from presiding if the niece or nephew appeared as counsel because they were within the “third degree of relationship” with the judge. Rule 501, Terminology. We found that the judge was not disqualified from presiding over cases in which other members of the firm appeared. However, we cautioned that the judge must consider whether his or her impartiality might reasonably be questioned and must also consider whether his or her ruling would have a substantial effect on the family member in the law firm.

Here, the first cousin is not within the “third degree of relationship,” so under the Canons, disqualification is not required. However, Canon 3E(1)(d) notes that disqualification is not limited to that circumstance only but states that a judge should disqualify himself/herself in a proceeding in which the judge’s impartiality might reasonably be questioned. Thus, we agree with the judge that he or she should not preside when the judge’s first cousin appears as counsel. The judge is not automatically disqualified from presiding over cases in which the cousin’s law firm appears unless the judge determines that his/her impartiality might reasonably be questioned or whether his or her ruling would have a substantial effect on the first cousin. Even if the judge determines that disqualification is appropriate, the parties can waive it: “[A] judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge’s disqualification and may ask the parties to consider, out of the presence of the judge, whether to waive disqualification.” Canon 3F. If the parties all agree that the judge should not be disqualified, the agreement should be put on the record and the judge may preside. 

(Mike Frisch)