Colorado Supreme Court Colorado Judicial Ethics Advisory Board (cjeab)
| Publication year | 2022 |
| Pages | 68 |
C.J.E.A.B. Advisory Opinion 2022-06 (Finalized and effective October 28, 2022)
Background And Issues Presented
The requesting judge presides over a criminal docket. His spouse is an attorney at a law firm who practices law in the same district. The judge recuses[1] himself from cases where his spouse enters an appearance. The judge has asked whether he must also recuse in the following situations, even if his spouse does not enter an appearance:
1. any criminal matter if the judge’s spouse obtains an alternate defense counsel contract to represent a criminal defendant in the same district where the judge presides.
2. any criminal case if his spouse is privately retained on a criminal matter within the district.
3. any case in a specific field of criminal law if his spouse practices in that particular field.
Summary
Any concern of potential bias or impropriety under the Code of Judicial Conduct ("Code") arises because of the relationship between the judge and his spouse, not the type of law his spouse practices. Based on the questions posed, under the Code, the judge need only recuse from those cases where his spouse enters an appearance. Therefore, as long as the judge’s spouse does not enter an appearance, the judge need not recuse if his spouse is alternate defense counsel in a similar case, is retained privately on a different criminal matter, or is an expert in a particular field of criminal law.
Applicable Provisions Of The Code:
Several Code provisions apply to this inquiry. Rule 1.2 requires judges to "act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary," and to "avoid impropriety and the appearance of impropriety."
Rule 2.4(B) provides that "A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment."
Rule 2.4(C) provides that "A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge."
Rule 2.11(A)(2) sets forth the circumstances in which a judge must disqualify himself or herself from a proceeding in which the judge’s impartiality might reasonably be questioned because of a spousal relationship:
A...
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