Colorado judges are allowed to hear cases in which one of the attorneys is their friend but should reflect on their own ability to be unbiased as well as how the situation looks to outsiders, according to the state Supreme Court's ethics panel.
The new opinion from the Colorado Judicial Ethics Advisory Board noted that judges should disclose such friendships to the parties in a case, and step aside if an observer could believe that a judge and attorney have "a close and unusual relationship."
The ethics panel — which includes judges, lawyers and a non-attorney — evaluated the propriety of judge-attorney relationships after receiving a question from a judge in a rural part of the state. The unidentified judge described their longstanding friendship with an attorney, from their time attending law school together to forming their own law firm — and even attending the births of each other's children.
The judge considered the attorney a "member of the family," and the two still meet up to exchange gifts or let their children interact.
Currently, the attorney does not practice in the counties where the judge presides. But the judge is considering whether to handle cases in another part of the judicial district where their lawyer friend does practice. Consequently, the judge asked the ethics advisory board to give its opinion about whether the judge must recuse themselves from all cases involving their friend.
"If the friendship is so close or unusual that it reasonably raises a question of impropriety, the judge should consider recusing, but the decision is within the judge’s discretion," the board wrote in response.
The rules of judicial conduct require judges to not permit their social relationships to affect their judgment or to give the impression that a person is in a position to influence the judge. Even so, the Colorado Supreme Court has not endorsed a blanket rule prohibiting judges from hearing cases involving their lawyer friends, but instead has pointed to the "closeness" of the relationship as the key factor.
The Nov. 17 guidance from the ethics board implicated not only the impartiality and integrity of the court system, but also the dynamics of the legal profession in less populated areas.
A previous opinion from 2005 shot down a rural judge's request to avoid recusal in cases involving the firm where the judge's brother-in-law was a lawyer. Although the ethics board acknowledged there were not many judges in the jurisdiction, nor many practicing lawyers, "the integrity of the judiciary outweighs the inconvenience."
The current panel did not go quite as far and instead placed the burden on judges to evaluate the circumstances of their relationships with attorney friends. In addition to weighing their feelings toward a friend, judges must also look at the relationship objectively and, at the least, tell the parties involved about the friendship.
The advisory opinion suggested several factors that judges can consider when thinking about how an outsider would perceive the relationship. Those include whether the judge and their attorney friend celebrate life events with each other, visit each other's homes or take vacations together. The characteristics of the local legal community are also relevant, including whether people would identify the judge and attorney as being particularly close.
With those disclaimers, the ethics board advised that the judge who initially solicited their opinion does not necessarily have to recuse themselves from cases involving their friend.
"Because most parties would consider the friendship — both past and present — between the judge and the attorney relevant, particularly in a rural jurisdiction, if the judge elects to preside over a new district, the judge should, at a minimum, disclose the relationship to the parties any time the attorney appears before the judge," the panel concluded.