The vast majority of the stories in The Mongoose newsletter which criticized judges asked (or could have included) these questions:
• What the hell were they thinking?
• Surely, they realized that does not pass the “ethical smell test?”
• Didn’t they think someone would get the word out and this would look really, really bad?
These questions certainly must be asked of any judge who allows her fiancé or spouse or his Associate Judge’s spouse to accept or handle cases pending in his or her court.
There is no doubt it is improper for an elected judge’s spouse to be allowed to represent clients in that judge’s court, as that is grounds for disqualification.
It is just as improper for a judge’s spouse to sign up cases already pending in his wife’s court and then use his wife’s position as reason to have the case transferred to another court. That amounts to reverse venue shopping and it creates a market for those who want out of a particular judge’s court to hire her spouse. The judge’s spouse should simply NOT accept cases that are pending in his wife’s court. A new case that a judge’s spouse files is different. If a new case lands in his wife’s court, then it can be randomly reassigned to another court and no one can possibly say that improper venue selection has occurred.
I strongly believe an Associate Judge’s spouse should not be allowed to practice before his wife’s boss (the presiding judge), even if all of the attorneys agree. I have talked to many current and former judges about this situation. All, but the one judge who allows this to go on, agree with me that the AJ’s spouse should not be allowed to practice in that court and should not sign up cases pending in that court. One retired family district judge who is widely respected and beloved responded to my inquiry on this subject with, “Are you kidding? Of course not! We all have an absolute duty to avoid even the appearance of impropriety.”
The appearance of impropriety is of course the reason why the AJ’s spouse should not represent clients before the AJ’s boss, even if the AJ never hears or rules on the case. The “Prime Directive” of the justice system is to foster confidence that courts and judges follow the rule of law and are ethical and fair to all. In the United States, we usually do not need the police or soldiers to make people follow court rulings, even those they strongly disagree with, because of the respect for our judicial system. Judges and lawyers must fight against anything that erodes or endangers that trust in the courts, including shady behavior that simply does not pass the “ethics smell test.”
In family courts, at least half of the litigants leave thinking they have lost. The courts maintain respect and credibility only if even the losers walk away feeling at least they got a fair hearing. How could the spouse or parent who is not represented by the AJ’s spouse not think the “fix was in” if he or she loses the case against the attorney who is married to the Associate Judge of that court?
The Preamble to the Texas Code of Judicial Conduct says in part, “Intrinsic to all sections of this Code of Judicial Conduct are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.”
The Code of Judicial Conduct states:
Canon 1: Upholding the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved. The provisions of this Code are to be construed and applied to further that objective.
Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the Judge’s Activities
A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge shall not allow any relationship to influence judicial conduct or judgment….
I called the Texas Commission on [Ignoring] Judicial [Mis]Conduct and the attorney I spoke to told me that the law did not require an automatic disqualification if a party is represented by the spouse of the Associate Judge. When I asked about the appearance of impropriety and partiality, the attorney I was speaking to conceded there was such a rule but indicated the Commission did not make judgment calls in such gray areas. This is why judges in Texas can get away with anything and not worry about the Commission ever doing anything unless there is an indictment or resignation.
One defense I have been offered for allowing an AJ’s spouse to practice in the AJ’s court before the presiding judge, is “it is okay if all of the attorneys agree.” First, attorneys should not be put in the position of having to object to a judge’s spouse. Some lawyers may fear they will anger the judge if they object. Second, there are some improper acts that a judge should refuse even if all of the attorneys involved agree to it. A judge must sometimes tell the lawyers, “I appreciate the idea and your cooperation, but I simply do not feel comfortable with that and I am not going to allow it, even though you all agree to it and are asking for it.”
The spouse of a judge enjoys many benefits if he or she is a practicing lawyer. Such lucky attorneys should accept that one “cost” of his or her spouse wearing the black robe is that the lawyer spouse cannot practice law in the court where his or her spouse works and should not even accept new cases pending in that court.
Note: The “Prime Directive,” used in four out of five Star Trek-based series, prohibits Starfleet personnel from interfering with the internal development of alien civilizations. This conceptual law applies particularly to civilizations which are below a certain threshold of technological, scientific and cultural development; preventing starship crews from using their superior technology to impose their own values or ideals on them.