INDEX AND SYNOPSES OF ADVISORY OPINIONS
AND ADMONISHMENTS BY THE
WEST VIRGINIA JUDICIAL INVESTIGATION COMMISSION
NOTE: The continued applicability of opinions rendered under the old Judicial Code of Ethics, before the 1 January 1993 effective date of the new Code of Judicial Conduct, will be examined by the JIC if a judicial officer requests review of a specific opinion.
NOTE ALSO: Anything in brackets is an editorial addition of something that does not appear in the opinion itself as issued by the JIC. An asterisk preceding a topic indicates an admonishment.
| DATE | CANON | TOPIC | SYNOPSIS | |
|---|---|---|---|---|
| 6/4/15 | 3B(11) | Adjudicative Responsibilities | The Commission advised that a judge who learned of a fugitive’s cell phone number and address during a judicial hearing was not permitted to make that information known to law enforcement since non-public information, acquired in a judicial capacity, cannot be disclosed for any purpose unrelated to judicial duties. | |
| 9/17/09 | None cited | Administrative Order | The Commission found that no ethical issues arose from an Administrative Order of the West Virginia Supreme Court that dealt with the temporary assignment of a judge to assist in the appointment of private attorneys for eligible clients. | |
| 9/10/19 | WVCJC Rule 3.9 | Administrative Order | JIC Advisory Opinion 2019-20. The Commission considered the question of whether a Circuit Judge serving as a mediator in an ad hoc mediation program falls within a judge’s official duties and therefore permissible pursuant to Rule 3.9 of the Code of Judicial Conduct, and whether some form of “enabling authorization” must first be obtained. The Commission noted that Mass Litigation Judges serving as Resolution Judges do not violate Rule 3.9. It is also possible that a multi-judge circuit may set up a Presiding Judge/Resolution Judge structure similar to the Business Court and Mass Litigation by administrative order. In such a case, it would be sanctioned by Order of the Chief Justice, and the duties would be considered official and not violate Rule 3.9. Any legislative enactment or Supreme Court Rule would also suffice. | |
| 7/5/01 | 2B | Advertisements | A magistrate may place a list of frequently used telephone numbers on place mats in restaurants and identify himself thereon as long as such place mats do not identify him as a magistrate or show any judicial identification. | |
| 08/2/19 | WVCJC Rule 4.1(A)(9) |
Advertisements | JIC Advisory Opinion 2019-18. During the summer before a student’s third year of law school, the student received a certification from the Supreme Court of Appeals of West Virginia stating that the student complied with all of the requirements of Rule 10, et. seq., of the Rules for Admission to practice Law, Relating to Legal Assistance by Law Students to Persons Unable to Pay for Services, and that their supervising attorney was a Prosecuting Attorney. The student worked at the Prosecutor’s Office and graduated law school in May of 2012. They did not receive another Rule 10 certification after graduating from law school. The student did not take the July 2012 bar examination, the first time the student sat was February 2013. While awaiting the results of the examination, they were hired as a full-time “assistant prosecutor.” The Prosecutor’s Office and the individual were mistaken believing that the individual could practice pursuant to Rule 10 while awaiting exam results. However, the individual did not comply with the Rule 10.2(a) requiring that the bar examination be taken immediately after graduation. Shortly after being employed as an “assistant prosecutor” they were notified that they did not pass the bar examination and the prosecutor’s office had to terminate employment. In 2019 this individual was appointed to serve as Magistrate and they have decided to run for re-election in 2020. In their advertisement the slogan “The Right Experience, The Right Choice” is used. Directly underneath the slogan, the candidate’s experience is listed, including working as an “Assistant Prosecutor.” Rule 4.1.(A)(9) states that “a judge or judicial candidate shall not knowingly, or with reckless disregard for the truth, make any false or misleading statement.” Based upon this Rule, the Commission determined that the Magistrate cannot use the term “assistant prosecutor” in campaign advertisements since they never served in that capacity. The Commission found it would be a material misrepresentation and leave the public with the mistaken impression that the magistrate has a license to practice law in West Virginia. Therefore, they may not state that they served as an assistant prosecutor but may say that they interned or clerked at the Prosecutor’s Office. | |
| 06/21/19 | WVCJC Rules 4.1(A)(9),(10) and (11), Rule 4.1(B) | Advertisements | JIC Advisory Opinion 2019-15. In JIC Advisory Opinion 2018-22, issued on December 17, 2018, the Commission was asked, among other things, what a judicial candidate’s obligations were if a third-party or political action committee (PAC) makes false or misleading statements about an opponent in a campaign. The Commission held that judicial candidates must disavow attacks and request the third-party or PAC to cease and desist: (1) any false or misleading statements made about opponents: (2) any statements that do not accurately reflect the duties and role of a judge; or (3) any statements that indicate that a judge or candidate is not neutral and is biased in favor or against an individual, group, or legal issue. The purpose of this opinion 2019-15 is to provide understanding of when and where the candidate’s obligations arise. With respect to category No. (1), the Commission does not believe that a judicial candidate is obligated to disavow every third-party or PAC misrepresentation. A judicial candidate’s awareness of the third-party or PAC campaign, is not, in and of itself, enough to impose a duty to monitor and address the group’s statements. The Commission is of the view that the obligation to disavow is not triggered until the following criteria are met: (a) the statement must involve a fact and not an opinion: (b) the fact must be substantive and significant; (c) the misstatement must actually be false or a material misrepresentation; and (d) the judicial candidate has knowledge of the third-party or PAC’s factual statement and its falsity. Once the obligation to disavow is initiated, the Commission finds that the situation is resolved through the timely issuance of a press release to all area news media and a prompt letter to the third-party or PAC instructing it to immediately stop running the false statement in question. Regarding Category Nos. (2) and (3), the Commission believes the obligation arises immediately. | |
| 8/19/05 | 1 & 2(A) | Appearance of Impropriety | In order to avoid the appearance of impropriety, a magistrate should not permit his brother to do any bonding business in his court. | |
| 9/4/19 | WVCJC Rule 2.11(A)(5)(b) | Appearance of Impropriety | JIC Advisory Opinion 2019-19. The Supreme Court of West Virginia will soon consider a writ of prohibition filed by a road construction company against a circuit. While one of the Justices was a Congressman, his office received a constituent services request from a witness in the underlying case. The Justice does not recall ever speaking with the witness. However, a congressional staffer did, and the witness was referred to the State Division of Highways. The Justice would like to know if he is disqualified from the petition for writ of prohibition. The Commission finds that the Justice does not need to disqualify himself as he did not participate personally or substantially in either the underlying case or the witness matter. The congressional office acted merely as a conduit between the witness and the Division of Highways, which was limited to a single instance. Therefore, the Commission believes the Justice may hear and vote on the petition. | |
| 6/13/19 | WVCJC Rule 2.10 | Appearance of Impropriety | JIC Advisory Opinion 2019-16. A Judge issued a rule to show cause against the West Virginia Department of Health and Human Resources in an abuse/neglect matter upon learning that there was a backlog of 1,100 cases in their jurisdiction that have been referred, but for which no action has been taken for over thirty days. The media learned of the crisis team being sent to the Judge’s county to begin working on the issue and requested comment from the Judge. Can the Judge speak to the media about the backlog and the show cause order? The Commission is of the opinion that Rule 2.10(A), which states a judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any non-public statement that might substantially interfere with a fair trial or hearing, precludes the Judge from making any statement about the matter since the rule to show cause is pending in court. | |
| 5/16/19 | WVCJC Rules 1.3, 3.3 | Appearance of Impropriety | JIC Advisory Opinion 2019-13. A Circuit Court Judge’s son married a woman from Indonesia. The United States Citizenship and Immigration Services (USCIS) requested documentation and two affidavits to establish that the Judge’s son and daughter-in-law entered into a marriage in good faith, reside together under one roof, and have a bona fide marital relationship. The question was whether the Judge can 1) submit the affidavit on behalf of the son and daughter-in-law; 2) whether the affidavit, if permitted, could be on judicial letterhead; and 3) if necessary, whether the Judge may testify in court on behalf of the couple. The Commission determined that the Judge may submit an affidavit and testify in court about the validity of the marriage since because of the Judge’s unique knowledge by virtue of the family relationship. However, the Judge should not use judicial letterhead because it could create the perception, however wrong, that the Judge is trying to use the judicial office to influence the decision of the USCIS. | |
| 05/09/19 |
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Appearance of Impropriety; | JIC Advisory Opinion 2019-12. A Circuit Judge was appointed on January 2, 2019. Prior to this, the Judge served on the Board of a non-profit. The Commission determined that under Rules 1.2 and 3.7, a judge may continue to serve on the board of a non-profit, with certain restrictions. In this case, the Judge may not be the signatory for any legal documents, contracts, rental agreements, etc. The Judge should not engage in any negotiations with prospective renters/leaseholders as it might be misconstrued by members of the public that they are practicing law in violation of Rule 3.10 of the Code of Judicial Conduct. If a court case would come before the Judge involving the non-profit as a renter or leaseholder who has an active agreement signed by the Judge, the Judge should disclose the same on the record and follow Trial Court Rule 17 where applicable. The Judge cannot engage in any fundraising for the non-profit except from family members and Judges of equal or greater rank. The Judge may attend dinners or fundraisers for the organization but should refrain from any participation in press events publicizing donations to it. Beyond those admonitions, the Judge may otherwise participate as a board member of the non-profit. | |
| 03/27/19 | WVCJC Rules 1.2; 3.11(B); 3.11(C) | Appearance of Impropriety; Applicability of Code of Judicial Conduct Disclosure, Financial Activities; Employment | JIC Advisory Opinion 2019-08. A Magistrate Judge opened a pawn shop and then wrote a letter to the Administrative Director regarding the same. The Director informed the Judge that the Judge could not participate in the venture because of potential conflicts and the strong belief that such activity is in contravention of the Code of Judicial Conduct, specifically Rule 3.11(B) and (C) of the Code. The Commission reviewed Rules 1.2 and 3.11 (C) of the Code of Judicial Conduct and determined that the Judge should have sought an opinion from the Commission or the Administrative Director prior to opening a pawn shop. | |
| 03/26/19 | WVCJC Rule 1.2 | Appearance of Impropriety | JIC Advisory Opinion 2019-07. The Commission is of the opinion that an appearance of impropriety occurs whenever a law partner of a Mental Hygiene Commissioner appears in front of other Commissioners in guardianship cases without having first satisfied the prerequisites of JIC Advisory Opinion 2014-21. Rule 1.2 of the Code of Judicial Conduct states that “[a] judge shall at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Given the scenario, reasonable minds could perceive that the MHC presiding over the case lacks impartiality because his fellow MHC works for the same firm. The Commission finds that a co-worker of an MHC can only appear in guardianship cases if the parameters contained in JIC Advisory Opinion 2014-21 are met. | |
| 7/30/15 | 2A | Appearance of Impropriety | The Commission advised a judge-designate that if he/she removed their name from the letterhead from the law firm previously run by the judge designate and his/her father, then the father could continue to use the name of the firm until the end of the year for tax purposes. The Commission also advised that the judge designate should not do any judicial work in the law firm’s offices but advised that the judge designate could still continue to use the law firm’s exercise equipment, but only after business hours. | |
| 9/23/14 | 2B, 2E | Appearance of Impropriety | The Commission advised that a judge who was the administrator of his father’s estate could not serve as a representative plaintiff in a class action lawsuit concerning the estate, but could either be a member of the class or file her/his own lawsuit. | |
| 5/27/14 | 2A | Appearance of Impropriety | The Commission advised that a judge should not request a prosecutor to handle truancy cases in a specific manner since such a request could create an appearance that the judge was assuming the functions belonging to the prosecutor, thereby creating an appearance of impropriety. | |
| 4/7/14 | 2A | Appearance of Impropriety | The Commission advised that, in order to avoid creating an appearance of impropriety, a Mental Hygiene Commissioner should not display campaign signs for two candidates for Family Court Judge in front of his law office. | |
| 3/25/14 | 2A & 3E | Appearance of Impropriety & Disqualification | The Commission advised that a judge is precluded from presiding over any cases that were previously handled by his/her spouse in magistrate court. | |
| 8/27/12 | 2 | Appearance of Impropriety | The Commission advised, in keeping with previous opinions on this topic, that it would create an appearance of impropriety for judicial officers to display the State Seal in their campaign materials. | |
| 10/28/11 | 2 | Appearance of Impropriety | The Commission advised that a circuit court clerk, an elected official, should not serve on the political campaign committee of a judicial candidate. | |
| 5/10/10 | 2A | Appearance of Impropriety | The Commission advised that a Judge should not grant a specific bonding company authority to serve as surety in the Judge’s circuit in light of the fact that the Judge’s secretary is the daughter-in-law of one of the principals of the bonding company. | |
| 5/10/10 | None Cited | Appearance of Impropriety | The Commission advised that a Judge’s secretary should not serve as a poll worker in light of the secretary’s position and concomitant proximity to judicial officers and judicial activities. | |
| 11/6/07 | 2C | Appearance of Impropriety | The Commission advised that membership in the Daughters of the American Revolution Organization would not be a violation of the Code of Judicial Conduct’s prohibition against membership in any organization that practices invidious discrimination. | |
| 10/31/05 | [No Canon cited] | Appearance of Impropriety | It was the opinion of the JIC that the Rape and Domestic Violence Information Center should not be permitted to hold a luncheon at the Magistrate Court for the employees of Magistrate and Family Court since such an event would create an appearance of impropriety. | |
| 6/14/07 | None Cited | Appearance of Impropriety | The Commission advised a judge that he had acted properly when, upon learning that an attorney who practices before the judge had loaned money to a member of the judge’s staff, the judge had contacted both the lawyer and the court staff member and explained the impropriety of such action. The judge had also suggested to the lawyer that he/she remove himself/herself from any cases he/she had pending before the judge. | |
| 3/19/07 | 2 | Appearance of Impropriety | The JIC noted the commentary to Canon 2B which provides that a judge must not initiate the communication of information to a sentencing Judge but may provide such information pursuant to a formal request. Therefore, it was the opinion of the JIC that unless a “formal request” was made to the Judge to provide the information, the Canon would prohibit the Judge from initiating the communication of the information. | |
| 2/26/86 | 7 & 5 | Applicability: Judicial Code of Ethics (municipal and police judges) | Municipal judges and police judges are not subject to the Judicial Code of Ethics. | |
| 12/21/15 | 2.15(b) | Applicability (Code of Judicial Conduct and Ethics) | It was the Commission’s opinion that a judge does not have to report possible lawyer overbilling to the Office of Lawyer Disciplinary Counsel unless the judge has made a finding that the lawyer overbilled and that her/his actions were unethical. | |
| 11/15/13 | 6 | Application of the Code of Judicial Conduct | Changing a previously taken position, the Commission advised that, in light of a demonstrated need to expand the principle of necessity, Mental Hygiene Commissioner may now act as attorneys or guardians ad litem in Guardianship/Conservator cases, subject to limitations set out in the advisory opinion. | |
| 10/8/13 | None cited | Application of the Code of Judicial Conduct | In response to a “conflict” question from a judge who anticipated that his wife might become employed as a paralegal, the Commission advised, pursuant to Rule 2.13 of the Rules of Judicial Disciplinary Procedure, that they were not in a position to issue an opinion advising what a judge is required to do based upon a hypothetical statement of facts. | |
| 6/29/12 | 6A, 5A, 3D | Application of the Code of Judicial Conduct | The Commission advised that a non-incumbent candidate for judicial office may be in violation of the Code of Judicial Conduct when his/her actions result in a domestic violence order being issued. The Commission further advised that Canon 3D(1) requires judicial officers to take appropriate action, which may involve filing a complaint with the Judicial Investigation Commission, when they receive information indicating a substantial likelihood that another person subject to the Code of Judicial Conduct has violated provisions of the Code. | |
| 3/24/12 | 6C | Application of the Code of Judicial Conduct | The Commission advised that it is permissible for a part-time Mental Hygiene Commissioner to concurrently practice as a part-time city attorney. | |
| 11/6/07 | 6C | Application of the Code of Judicial Conduct | The Commission advised that Mental Hygiene Commissioners could represent individuals in conservator and guardianship proceedings but would have to recuse themselves if the person they represented later appeared before the Mental Hygiene Commissioner. | |
| 8/10/00 | 3E | Applicability | The code of Judicial Conduct does not address the conduct of judicial candidates. Such inquiries should be addressed to the Lawyer Disciplinary Counsel. | |
| 10/7/94 | 6C | Applicability: Code of Judicial Conduct (continuing part-time judge) | A former full-time family law master (now serving as a special family law master to complete a few cases which he or she previously heard while performing duties as a full-time family law master) may also represent individuals in domestic relation matters, under the narrow circumstance that the service of the special family law master is limited and directed to the completion of a few cases which he or she previously heard as a full-time law master. | |
| 4/14/00 | 5 & 6 | Applicability: Code of Judicial Conduct | A retired judicial officer who is not admitted to senior status whose son is a candidate for judicial office is not required to comply with Canon 5 of the Judicial Code of Conduct, which places restrictions on political activity. Only retired senior-status judges are required to comply with Canon 5 of the Judicial Code of Conduct. | |
| 2/25/94 | 3C(4) | Appointments | A judicial officer is prohibited from appointing a nephew by marriage to represent indigent persons charged with criminal offenses. | |
| 9/4/14 | Art. VII Sec. 7 of the W. Va. Constitution | Appointments | The Commission advised that a judge who is the administrator of her/his uncle’s estate cannot serve as the special commissioner for the sale of the property because that would be in violation of Art. VIII, Section 7's prohibition of a judge holding any other office. | |
| 7/30/14 | 3 | Appointments | The Commission advised that it would not constitute a violation of the Code of Judicial Conduct for a judge to appoint the spouse of the judge’s current law clerk to a fiduciary position reviewing the filings of guardian/conservators. | |
| 3/6/09 | Article VIII, Section 7 of West Virginia Constitution | Appointments | The Commission advised that a judge could not accept an appointment effected through an executive order of the Governor to the "Governor’s Commission on Prison Overcrowding" since to do so would violate the West Virginia Constitution’s prohibition against accepting any appointment under the government. | |
| 10/20/08 | 3C | Appointments | The Commission advised that a magistrate should not employ his/her niece as a magistrate assistant since it could be seen as constituting a violation of the prohibition against nepotism. | |
| 10/31/07 | WV Constitution, Article VII, Section 7 |
Appointments | The Commission advised that it would not be appropriate for a judge to accept an appointment to the West Virginia Archives and History Commission as such an appointment would violate the provision in Article VIII, section 7 of the WV Constitution which prohibits a judge from holding any other office. | |
| 8/9/06 | 3(C)4 | Appointments | A Family Court Judge was previously employed by a nonprofit legal services
agency that represented children in both Circuit Court and Family Court. It was the opinion of the JIC
that the Code of Judicial Conduct would not prohibit the Judge from appointing attorneys from his previous
employer to represent children as long as those appointments made impartially and on the basis of merit as required by Canon 3C(4). |
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| 3/15/01 | 6 | Acceptance of court appointments by a Mental Hygiene Commissioner | A mental hygiene commissioner may accept court appointments restricted only by the language of Cannon 6 that he or she not accept appointments in a matter related to a proceeding in which he or she has served as judge or in any matter involving the same subject-matter jurisdiction. | |
| 4/24/97 | 2A & 4C(3) | Attendance (annual luncheons, picnics and parties sponsored by organizations representing one interest in one area) | It is not proper for a judicial officer to attend as a guest annual luncheons, picnics or parties sponsored by victim assistance programs, sexual assault centers, family violence prevention programs, police agencies, and others because these organizations represent one interest in a particular area and appear in court on a regular basis. | |
| 7/31/06 | [None cited] | Attendance | It was the opinion of the JIC that the Code of Judicial Conduct would not prohibit a Family Court Judge who is a member of the Family Court Education Committee from attending a family dinner or barbeque event conducted, in connection with the conference, by an attorney who practices before Family Court Judges and is a member of the House of Delegates. | |
| 3/23/01 | 2A, 3A, 3B(2)(9) | Attendance at town meetings. Response to public criticism of the Court. | A judge should not attend a town meeting
to discuss drug and violence problems in his or her county. It is
likely that the judge would have occasion to hear cases discussed
at such meetings. Further, a judge should not attend such meetings to respond to public criticism of the Court. The judge was referred to Tom Tinder 304-558-7993 to determine whether the West Virginia State Bar committee formed to defend the judiciary in certain cases would be available to respond. |
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| 12/11/97 | Canon 4B | Attendance (Concerned Citizens about Juvenile Crime meeting) | A magistrate may attend a meeting of a local group known as Concerned Citizens about Juvenile Crime for the purpose of giving information regarding how juvenile cases are handled in magistrate court if the organization is a study group which is trying to find out how the court system works. However, if the organization is an advocacy group, the magistrate may not participate in its meeting. | |
| 8/29/97 | 2A and 4C (3) | Attendance (County Crimestoppers banquet) | It is not proper for a judicial officer to attend a county crimestoppers banquet since the organization sponsoring the banquet represents one interest in a particular area and based on their activities, members of the organization could appear in court on a fairly regular basis. | |
| 9/3/03 | 3 | Avoidance of Impropriety | Judge seeks employment of a co-op student to work part-time in the magistrate clerk’s office. Magistrate clerk conducted interviews and provided judge with three (3) choices and recommended her daughter who was one of the three prospects. All three prospects appeared to be equally qualified. JIC advises that the appointment of the Magistrate Clerk’s daughter would violate the Canon 3 provision relating to nepotism and favoritism. | |
| 9/10/19 | WVCJC Rule 2.10 | Avoidance of Impropriety | JIC Advisory Opinion 2019-21. A Judge was asked to appear on a nationally broadcast podcast hosted by Nancy Grace, a well-known legal commentator and journalist. The discussion would be regarding “cold cases” in other states. Based upon Rule 2.10, the Commission found that it would be improper for the Judge to discuss cold cases from other states since those matters could one day come before a court. | |
| 01/17/19 | WVCJC Rules 1.3; 3.1(A)-(C); 3.7 | Avoidance of Impropriety; Extrajudicial Activities; Application of the Code of Judicial Conduct; Participation in Education, Religious, Charitable, Fraternal or Civic Organizations and Activities | JIC Advisory Opinion 2019-03. A Magistrate Judge who is a member of a volunteer fire department had been nominated by the County Firefighters Association to sit on the County Fire Board. As a board member, the Judge would research information and propose the enactment of a countywide fire service fee. The Judge would also educate the public on the need for the fee and would assist in the drafting of an ordinance. This is strictly a volunteer position. There would not be any gifts or compensation for the participation or handling of any funds while in this position. The Commission reviewed Rules 1.3, 3.1(A), (B) and (C), and 3.7 of the Code of Judicial Conduct and came to the conclusion that the Judge cannot serve on the County Fire Board. The duties of board members are such that the public, however wrong it may be, could construe that the Judge was using the prestige of office to influence a political question. Moreover, the “education” requirement is tantamount to the solicitation of money. Lastly, most actions to collect delinquent fire fees are filed in Magistrate Court, and once appealed to Circuit Court, the constitutionality of the fee is generally questioned. | |
| 8/30/13 | 2A and 3E(1)(c) | Avoidance of Impropriety/Disqualification | The Commission advised that it would be improper for a magistrate’s wife to work as a bail bondsperson while the magistrate held his judicial position. The Commission felt that otherwise an appearance of impropriety could be created. The Commission also noted that, pursuant to Canon 3E(1)(c), a judge shall disqualify himself where the judge knows that he, or his spouse, has an economic interest in the subject matter in controversy, and pointed out that a bail bondsperson would, of course, have an economic interest in every case in which he/she had posted a bond. | |
| 3/7/12 | 3C(2), etc. | Avoidance of Impropriety | The Commission advised that it would be impermissible for a judge’s law clerk to concurrently serve as a Mental Hygiene Commissioner. | |
| 1/4/11 | None cited | Avoidance of Impropriety | The Commission advised that a Judge should not serve as a mediator in a divorce case involving contested custody in a county in which the Judge serves as a temporary Family Court Judge.> | |
| 10/15/10 | 2A & 3E | Avoidance of Impropriety | The Commission advised that when an attorney who previously represented the Judge in litigation appears in the Judge’s courtroom, the Judge should disclose the prior representation to the parties. | |
| 3/21/11 | None cited | Avoidance of Impropriety | The Commission advised that when the Judge’s law clerk is engaged to be married to an attorney who practices in the Judge’s circuit, the law clerk should not be involved in any fashion or form in cases in which her fiancé is involved. | |
| 3/21/11 | None cited | Avoidance of Impropriety | The Commission advised that when a probation officer’s husband is an attorney who practices in the same county, the probation officer cannot work on any cases in which her husband is serving as counsel in any capacity. Similarly, the Commission advised that since the Judge’s law clerk is married to an attorney who practices in their jurisdiction, the law clerk should not work on any cases with which her husband is involved. The Commission also advised that when the Judge’s electronic recording operator (ERO) previously worked as a paralegal for a local law firm, there is no need to disclose that information since the ERO is no longer working as a paralegal and is neither in a decision making capacity nor doing legal research on cases. | |
| 7/20/04 | 2 | Avoidance of Impropriety | A Judge may not properly employ, for work around the Judge’s house, a person who is a frequent litigant in the Judge’s court. | |
| 11/10/03 | 2 | Avoidance of Impropriety | Judge, who also serves as President of a University Alumni Association, asks if a judge can properly respond, publicly, to a newspaper advertisement, which is critical of the University President. JIC advises that any response would create the appearance that the prestige of the judicial office was being used to advance the private interests of others. | |
| 2/27/04 | 6(C) | Avoidance of Impropriety | Mental Hygiene Commissioner should not act as an attorney in a Guardianship and Conservator in a county in which he/she serves as a mental hygiene commissioner. | |
| 9/28/98 | [No canon cited] | Avoidance of Impropriety | The Code of Judicial Conduct does not prohibit a family law master from receiving funds from an attorney who occasionally practices before him or her when the funds were given as a result of a contingency fee agreement made by the family law master before assuming office. The agreement specified that upon assuming office, the family law master would turn over a personal injury case that he had been working on to the other attorney, who would equally divide the attorney fee portion of the proceeds with the family law master upon final resolution of the case. The family law master made clear that the client understood and agreed to contingency fee agreement when it was made. | |
| 8/25/98 | Canons 2B and 4 | Avoidance of impropriety (public supporter of school levy) | It is improper for a judicial officer to be an active public supporter of an upcoming school levy. | |
| 12/11/97 | Canons 2A and 3B | Avoidance of impropriety and judicial duties | Magistrates are prohibited from participating in a pretrial diversion program in which magistrates refer college students, with their consent, who are charged with certain alcohol and other offenses to a college-sponsored student assistant program. In this pretrial diversion program magistrates upon receiving notice of the student's satisfactory completion of the program inform the prosecutor, who then moves to dismiss the case. Because there is no legal authority for magistrates to participate in this type of pretrial diversion program and because participation in such a program would have magistrates bestowing the benefits of a diversion program on some litigants in a certain class which are not available to other litigants in the same class, Canons 2A and 3B prohibit magistrates from participating in such program. Diversion programs would reside more properly in the office of the prosecuting attorney. | |
| 4/5/95 | 2A | Avoidance of impropriety (when son of magistrate assistant is a bail bondsman) | A magistrate must take appropriate means to ensure that no referrals from either the magistrate or the magistrate assistant are made to the son of the magistrate assistant. | |
| 5/21/01 | 4C | Charitable Foundations | A Judge may serve as an advisory board member to the Make a Wish Foundation so long as such service is non-legal and that he did not solicit funds for the organization or permit the use of the prestige of his office for that purpose. | |
| 05/09/19 |
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Membership; Appearance of Impropriety; Practice of Law; Charitable Foundations; Fund-Raising | JIC Advisory Opinion 2019-12. A Circuit Judge was appointed on January 2, 2019. Prior to this, the Judge served on the Board of a non-profit. The Commission determined that under Rules 1.2 and 3.7, a judge may continue to serve on the board of a non-profit, with certain restrictions. In this case, the Judge may not be the signatory for any legal documents, contracts, rental agreements, etc. The Judge should not engage in any negotiations with prospective renters/leaseholders as it might be misconstrued by members of the public that they are practicing law in violation of Rule 3.10 of the Code of Judicial Conduct. If a court case would come before the Judge involving the non-profit as a renter or leaseholder who has an active agreement signed by the Judge, the Judge should disclose the same on the record and follow Trial Court Rule 17 where applicable. The Judge cannot engage in any fundraising for the non-profit except from family members and Judges of equal or greater rank. The Judge may attend dinners or fundraisers for the organization but should refrain from any participation in press events publicizing donations to it. Beyond those admonitions, the Judge may otherwise participate as a board member of the non-profit. | |
| 12/8/95 | 3B(9) | Comment on proceeding (request for affidavit or statement by judicial officer in proceeding before the West Virginia Board of Medicine) | A judicial officer may not voluntarily submit an affidavit or statement to the West Virginia Board of Medicine about a proceeding pending or impending in the judicial officer's court. However, if properly summoned and under a subpoena, a judicial officer may testify as a witness about events which happened independent from the proceeding. | |
| 9/10/19 | WVCJC Rule 2.10 | Comment on Proceeding | JIC Advisory Opinion 2019-21. A Judge was asked to appear on a nationally broadcast podcast hosted by Nancy Grace, a well-known legal commentator and journalist. The discussion would be regarding “cold cases” in other states. Based upon Rule 2.10, the Commission found that it would be improper for the Judge to discuss cold cases from other states since those matters could one day come before a court. | |
| 6/13/19 | WVCJC Rule 2.10 | Comment on Proceeding | JIC Advisory Opinion 2019-16. A Judge issued a rule to show cause against the West Virginia Department of Health and Human Resources in an abuse/neglect matter upon learning that there was a backlog of 1,100 cases in their jurisdiction that have been referred, but for which no action has been taken for over thirty days. The media learned of the crisis team being sent to the Judge’s county to begin working on the issue and requested comment from the Judge. Can the Judge speak to the media about the backlog and the show cause order? The Commission is of the opinion that Rule 2.10(A), which states a judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any non-public statement that might substantially interfere with a fair trial or hearing, precludes the Judge from making any statement about the matter since the rule to show cause is pending in court. | |
| 10/14/94 | 1, 2A 3E(1)(a)(b) and 6C(2) | *Conflict of interest (impropriety; disqualification) | A part-time mental hygiene commissioner may not represent a person charged with criminal battery on a resident of a mental health facility when that resident was committed to the facility on the recommendation of the commissioner. The prohibition against representation applies also when a client is (1) convicted of battery and is appealing the conviction; (2) is appealing the termination of the client's employment; or (3) is appealing the client's license suspension - when the commissioner had recommended commitment of the resident victim involved. | |
| 9/10/19 | WVCJC Rule 3.9 | Conflict of Interest | JIC Advisory Opinion 2019-20. The Commission considered the question of whether a Circuit Judge serving as a mediator in an ad hoc mediation program falls within a judge’s official duties and therefore permissible pursuant to Rule 3.9 of the Code of Judicial Conduct, and whether some form of “enabling authorization” must first be obtained. The Commission noted that Mass Litigation Judges serving as Resolution Judges do not violate Rule 3.9. It is also possible that a multi-judge circuit may set up a Presiding Judge/Resolution Judge structure similar to the Business Court and Mass Litigation by administrative order. In such a case, it would be sanctioned by Order of the Chief Justice, and the duties would be considered official and not violate Rule 3.9. Any legislative enactment or Supreme Court Rule would also suffice. | |
| 9/4/19 | WVCJC Rule 2.11(A)(5)(b) | Conflict of Interest | JIC Advisory Opinion 2019-19. The Supreme Court of West Virginia will soon consider a writ of prohibition filed by a road construction company against a circuit. While one of the Justices was a Congressman, his office received a constituent services request from a witness in the underlying case. The Justice does not recall ever speaking with the witness. However, a congressional staffer did, and the witness was referred to the State Division of Highways. The Justice would like to know if he is disqualified from the petition for writ of prohibition. The Commission finds that the Justice does not need to disqualify himself as he did not participate personally or substantially in either the underlying case or the witness matter. The congressional office acted merely as a conduit between the witness and the Division of Highways, which was limited to a single instance. Therefore, the Commission believes the Justice may hear and vote on the petition. | |
| 5/16/19 | WVCJC Rules 1.3, 3.3 | Conflict of Interest | JIC Advisory Opinion 2019-13. A Circuit Court Judge’s son married a woman from Indonesia. The United States Citizenship and Immigration Services (USCIS) requested documentation and two affidavits to establish that the Judge’s son and daughter-in-law entered into a marriage in good faith, reside together under one roof, and have a bona fide marital relationship. The question was whether the Judge can 1) submit the affidavit on behalf of the son and daughter-in-law; 2) whether the affidavit, if permitted, could be on judicial letterhead; and 3) if necessary, whether the Judge may testify in court on behalf of the couple. The Commission determined that the Judge may submit an affidavit and testify in court about the validity of the marriage since because of the Judge’s unique knowledge by virtue of the family relationship. However, the Judge should not use judicial letterhead because it could create the perception, however wrong, that the Judge is trying to use the judicial office to influence the decision of the USCIS. | |
| 3/10/15 | 3C | Conflict of Interest | The Commission advised that it would not be proper for the cohabiting partner of a magistrate assistant to serve as a bail bondsman in the magistrate’s county or the surrounding counties since the magistrate assistants work closely with the magistrates in the setting and enforcement of bonds. | |
| 3/10/15 | 3C | Conflict of Interest | The Commission advised that it would not be proper for the cohabiting partner of a magistrate assistant to serve as a bail bondsman in the magistrate’s county or the surrounding counties since the magistrate assistants work closely with the magistrates in the setting and enforcement of bonds. | |
| 10/28/11 | None cited | Conflict of Interest | The Commission advised that a Magistrate, whose granddaughter is a part-time employee of an attorney, must advise all parties of the employment situation whenever the attorney appears in a hearing before the Magistrate. | |
| 10/28/11 | None cited | Conflict of Interest | The Commission advised that there is no conflict when an elected County Commissioner appears as an attorney before the Circuit Court. | |
| 4/14/10 | 3(C)(5) | Conflict of Interest/Disqualification | The Commission advised that the Judge’s staff should not participate in cases in which a litigant is related to a member of the staff. The Commission also advised that the Judge’s staff may assist a special judge who is appointed as a result of a conflict of interest or a disqualification. | |
| 10/5/10 | 2A & 3E | Conflict of Interest | The Commission advised that if a Judge hires as his court reporter a person whose son is an attorney who routinely practices in the Judge’s court, then the son would not be allowed to appear in the Judge’s court while the mother worked as the Judge’s court reporter. | |
| 3/21/11 | None Cited | Conflict of Interest | The Commission advised that there is no potential conflict with the Judge presiding over cases involving an attorney whom the Judge sued thirteen years ago, and no potential conflict as to cases involving the attorney’s law-partner wife. | |
| 3/8/10 | None Cited | Conflict of Interest/Disqualification | The Commission advised that a Magistrate should consult with the Circuit Judge concerning whether the Magistrate should disqualify himself from cases involving the law firm that employs the Magistrate’s wife. | |
| 5/21/07 | 6 | Conflict of Interest | The Commission advised that a part-time Mental Hygiene Commissioner could accept court appointed clients in criminal cases but could not represent any client who had appeared before the Mental Hygiene Commissioner in a Mental Hygiene hearing. | |
| 4/30/07 | 3 | Conflict of Interest/ Judicial Duties | The Commission advised that it would not constitute a conflict of interest for a judge if his/her daughter was hired as a magistrate assistant. If administrative oversight of magistrate court by a circuit judge would involve the judge’s daughter, the matter could be reassigned to another judge. | |
| 10/31/05 | [ No Canon cited ] | Conflict of Interest | The JIC reaffirmed its prior opinion that a Family Court Judge would have to be recused from any case in which the Family Court Judge had previously been involved while acting as an attorney for the Child Advocate’s Office. | |
| 6/6/06 | [None cited] | Conflict of Interest | It was the opinion of the JIC that a probation officer married to an assistant prosecuting attorney in the same county would not create a conflict of interest if steps were taken to ensure that they would have no professional contact in all cases being handled by the assistant prosecutor in which the defendant would be referred to the probation department. The JIC opinion emphasized that in such a situation, it was also important to avoid even giving the appearance of any conflict of interest. | |
| 4/26/06 | 1 and 3E | Conflict of Interest; recusal | It was the opinion of the JIC that a magistrate’s wife should not be permitted to become an employee of the local prosecuting attorney’s office since such employment would create conflicts for the magistrate in all criminal cases and would require recusal of the magistrate in such cases, thereby imposing an undo burden upon the magistrate court system. | |
| 2/04/05 | None | Conflict of Interest | JIC found no ethical violation in the following circumstances. Judge entered divorce order. Order does not require counseling. One of the parties seeks counseling services from judge’s wife without judge’s prior knowledge. Judge states that he would seek recusal if case ever came back before him. | |
| 6/16/93 | [No canon cited] | Conflict of interest (rule of necessity) | Under certain circumstances, the rule of necessity would permit a mental hygiene commissioner to continue to serve in that capacity even though the person's law partner in private practice is a part-time assistant prosecuting attorney, as long as the partner does not handle cases heard by the mental hygiene commissioner. [See Canon 3E Commentary.] | |
| 9/15/00 | 4D(3) | Conflict of Interest | Magistrates may own and participate in an insurance agency business. Such magistrate may not, however, hear any cases involving his policyholders and it would be inappropriate to solicit business from parties appearing before him. | |
| 7/5/01 | 4H | Contingency fees; reporting requirements | A Family Law Master must report receipt of a partial contingency fee received two years after taking office and two years after closing her private practice and referring the case to another attorney. | |
| 9/18/01 | 2B | Correspondence to support son's case | A Judge may not voluntarily submit a letter to the Judge of another Court to support his son’s case. If such Judge were subpoenaed, however, the Judge could provide information requested by the Court. | |
| 5/16/19 | WVCJC Rules 1.3, 3.3 | Correspondence to support son's case | JIC Advisory Opinion 2019-13. A Circuit Court Judge’s son married a woman from Indonesia. The United States Citizenship and Immigration Services (USCIS) requested documentation and two affidavits to establish that the Judge’s son and daughter-in-law entered into a marriage in good faith, reside together under one roof, and have a bona fide marital relationship. The question was whether the Judge can 1) submit the affidavit on behalf of the son and daughter-in-law; 2) whether the affidavit, if permitted, could be on judicial letterhead; and 3) if necessary, whether the Judge may testify in court on behalf of the couple. The Commission determined that the Judge may submit an affidavit and testify in court about the validity of the marriage since because of the Judge’s unique knowledge by virtue of the family relationship. However, the Judge should not use judicial letterhead because it could create the perception, however wrong, that the Judge is trying to use the judicial office to influence the decision of the USCIS. | |
| 5/7/01 | 4 | Courthouse Improvement Authority, Voting member of Board | Service on the Courthouse Improvement Authority as a voting member as a representative of the County Commission Association is permitted. | |
| 5/7/03 | 3 and 4 | a. Disqualification b. Governmental, civic, or charitable activities; c. Practice of Law |
For general reference regarding disqualification
involving former clients see JIC Advisory Opinion March 16,
1999.Canon 3 requires disclosure of information which might be considered
relevant to disqualification. In the event of actual disqualification,
Magistrate must arrange for another judicial officer to handle the
matter even if the matter is at night or on a weekend. Citing Canon 4, the JIC advises that the Magistrate may serve on a nonprofit volunteer organization whose mission is to promote traditional music and dance so long as the Magistrate is not involved in any fundraising. Magistrate should first consult with the Chief Circuit Judge regarding any activities involving the Magistrate engaging in the practice of law. In the event such consultation does not resolve such pending issues, the Magistrate is encouraged to seek a JIC Opinion on specific unresolved questions. |
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| 09/4/19 | WVCJC Rule 2.11(A)(5)(b)) | Disqualification | JIC Advisory Opinion 2019-19. The Supreme Court of West Virginia will soon consider a writ of prohibition filed by a road construction company against a circuit. While one of the Justices was a Congressman, his office received a constituent services request from a witness in the underlying case. The Justice does not recall ever speaking with the witness. However, a congressional staffer did, and the witness was referred to the State Division of Highways. The Justice would like to know if he is disqualified from the petition for writ of prohibition. The Commission finds that the Justice does not need to disqualify himself as he did not participate personally or substantially in either the underlying case or the witness matter. The congressional office acted merely as a conduit between the witness and the Division of Highways, which was limited to a single instance. Therefore, the Commission believes the Justice may hear and vote on the petition. | |
| 03/27/19 | WVCJC Rules 1.2, 2.11(A)(1) | Disqualification; Legislative Activity; Disclosure; Appearance of Bias | JIC Advisory Opinion 2019-09. A Judge served as a member of the West Virginia House of Delegates for approximately twenty years, overseeing legislation that made West Virginia a right-to-work state. In connection with litigation challenging the right-to-work law, the Circuit Court issued an injunction staying its implementation, and the Supreme Court reversed the injunction and allowed the legislation to be implemented pending the Circuit Court’s ruling on the merits of the legislation. Recently a Circuit Court has declared the right-to-work law unconstitutional and the Judge wants to know if they should voluntarily recuse themselves from presiding over any appeal relating to the right-to-work law. Based upon review of Rule 1.2, 2.11(A)(1) and Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 459 S.E.2d 374 (1995), the Commission is of the opinion that the Judge should voluntarily recuse themselves from presiding over any appeal of the right-to-work law given prior comments in support of the legislation may cause a well-informed observer to conclude, however wrong, that the Judge is biased in favor of the law’s constitutionality. | |
| 10/19/17 | WVCJC Rules 1.2 and 2.11; (reference Trial Court Rule 17) | Disqualification | JIC Advisory Opinion 2017-21. A Family Court Judge (“Judge”) requested an opinion as to whether or not the Judge would be permitted to preside in cases involving a lawyer (and/or member of the lawyer’s firm) that was engaged by the Judge’s daughter in her divorce proceedings. The daughter’s divorce proceedings were before another family court judge. The JIC considered West Virginia Code of Judicial Conduct Rule 1.2, Rule 2.11 (A), Rule 2.11 (C), and relevant case law, notably Tennant v. Marion Health Care Foundation, 104 W. Va. 97, 459 S.E.2d 374 (1995), and weighed the need to avoid the appearance of impartiality with the duty for a judge to sit where there is no valid reason for disqualification. The JIC determined that a per se disqualification is not required where a party is represented by a member of the law firm that represents the Judge’s daughter. The JIC further advised the Judge that instead of disqualification, the Judge should disclose the matter on the record to all parties, and follow Trial Court Rule 17 where applicable. | |
| 08/24/17 | WVRJDP 2.13 | Disqualification | JIC Advisory Opinion 2017-19. A judge requested an advisory opinion on whether the judge would be disqualified from handling cases where a party to several actions had recently made what the judge believed was a “substantial” donation to the judge’s judicial campaign. The Commission relied upon Rule 2.13 of the Rules of Judicial Disciplinary Procedures in stating that it would be inappropriate for the Commission to issue an Advisory Opinion in this matter. The Commission emphasized that it “would not be suitable” for the Commission to “base an advisory opinion concerning disqualification/disclosure simply on the amount of money contributed” by an individual to the judge’s judicial campaign, further stating that “In truth, [the judge is] the only person who really knows” if the contribution influenced the judge or whether disclosure would be appropriate. Finally, the Commission suggested that in the future, the judge “refrain from learning who contributed” to the judge’s campaign “in order to avoid further disqualification/disclosure issues”. | |
| 07/24/17 | WVCJC 1.1 and 2.11 | Disqualification of Lawyer | JIC Advisory Opinion 2017-17. A judge initially asked the Office of Lawyer Disciplinary Counsel for advice in a situation where a long-time assistant prosecutor transitioned to public defender, thus requiring the attorney to be conflicted-out of handling a number of cases/indictments. The judge posed the question as to whether this would also disqualify the assistant public defenders, now working under the lawyer that assumed the role of public defender. The Office of Lawyer Disciplinary Counsel advised that it did believe the assistant public defenders would also be conflicted off those cases where the public defender had personal and substantial involvement as an assistant prosecutor. The judge requested the JIC to issue an Advisory Opinion on the same issue because the judge did not believe that the Office of Lawyer Disciplinary Counsel made the correct determination. The Commission reviewed WVCJC Rule 1.1, which requires a judge to comply with the law including the Code of Judicial Conduct, and WVCJC Rule 2.15 of the Code of Judicial Conduct, which requires a judge to take appropriate action if the judge has substantial knowledge indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct. The Commission further highlighted that Comment 2 of Rule 2.15 places the responsibility for making such a determination on the judge, following the interpretation that the judge believes is the correct and proper principle. The Commission clarified that a judicial error, in this regard, would not be a violation of the Code of Judicial Conduct if there is no intent on the part of the judge to prejudice the rights of the parties. The Commission urged the judge to apply what the judge believes is the correct interpretation of the law on the issue of lawyer disqualification in this matter, and that regardless of a determination on appeal, in making what the judge believes is the correct decision, the judge does not violate the Code of Judicial Conduct. |
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| 07/10/17 | WVRJDP 2.13(c) and WVCJC 1.2 and 2.11 | Disqualification | JIC Advisory Opinion 2017-16. A judge posed two specific questions concerning the issue of disqualification: first, if a judicial officer is automatically disqualified from presiding over a case when a party to the matter has sued the judge in an official capacity; and, second, if a judicial officer is automatically disqualified from presiding over a case when a party to the matter had previously filed a judicial complaint against the judge. In making its determination, the Commission reviewed Rules 1.2 and 2.11 of the West Virginia Code of Judicial Conduct. The Commission noted that according to Rule 1.2, a judge shall avoid impropriery and the appearance of impropriety. The Commission relied upon Comment 5 to Rule 1.2, which explains that the “test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge”. The Commission discussed the narrow circumstances under which a judge would be obligated to self-disqualify, focusing in particular on Rule 2.11 (C) which requires a judicial officer to voluntarily disqualify himself or herself only if the judge has an “actual or perceived personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding”. The Commission further clarified, citing Comment 5 to Rule 2.11, that even where a judge believes there is no basis for disqualification, “a judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification”. The Commission pointed out that in Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 4598 S.E.3d 374 (1995), the Court refused to adopt a per se recusal rule in a situation where a judge in an official capacity is/had been represented by counsel to one of the litigants appearing before him, noting that this “would have a substantial impact on available judicial resources.” Balancing these principles, the Commission found that “a per se disqualification is not required in cases where a party has sued the judge in his official capacity or has filed a judicial ethics complaint against him/her. Instead, the judge should disclose on the record to all parties and follow Trial Court Rule 17 where applicable”. |
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| 05/08/17 | WVCJC 2.11 | Disqualification | JIC Advisory Opinion 2017-12. A judge, elected in May 2016 and taking office in January 2017, requested clarification as to whether the judge could hear matters handled/presented by a lawyer, now representing the BCSE, and with whom the judge had prior professional association. Prior association includes the judge serving as counsel to the lawyer, the lawyer serving on the judge’s campaign committee, and the lawyer being a peer-colleague in private practice for several years approximately twenty-five (25) years ago. After reviewing Rule 2.11 of the Code of Judicial Conduct along with related cases and Comments, the Commission concluded that the judge is not disqualified from handling cases involving the attorney, but advised the judge that full disclosure of the relationship, following tenents of Rule 58 of the Rules of Practice and Procedure for Family Court and West Virginia Trial Court Rule 17 where applicable, is appropriate. | |
| 05/12/17 | WVCJC 2.11 | Disqualification/Recusal | JIC Advisory Opinion 2017-13. A judge requested an opinion as to whether or not recusal from all future cases involving a former Circuit Judge who had been suspended for violations of the Code of Judicial Conduct was warranted. The judge requesting the opinion had been named as a witness in the former Circuit Judge’s disciplinary action given their friendship and professional association. By way of background, in a matter before the judge in which the former Circuit Judge represented one of the parties, Chief Justice Allen Loughry declined to grant a Motion to Disqualify the judge, and the Commission considered the issue moot. In considering Rule 2.11 of the Code of Judicial Conduct and pertinent of its comments and case law, the Commission in the instant matter balanced the need to avoid even the appearance of bias/impartiality and the strong duty to sit where there is no valid reason for recusal. The Commission concluded that the judge would not be disqualified from handling cases involving the former Circuit Judge, but that that the judge should fully disclose the nature of the relationship. The Commission also urged the judge to follow the tenents of Rule 58 of the Rules of Practice and Procedure for Family Court, and West Virginia Trial Court Rule 17 where applicable. | |
| 05/22/17 | WVCJC 1.2 and 2.11 | Disqualification/Recusal | JIC Advisory Opinion 2017-14. A judge requested an opinion as to whether or not recusal from all cases involving a lawyer who rents commercial office space from the judge’s spouse would be warranted. Additionally, the judge noted that the lawyer frequently represents one party or serves as a Guardian ad Litem in Family Court. The Commission reviewed Rule 1.2, Confidence in the Judiciary, and Rule 2.11, Disqualification, of the Code of Judicial Conduct, along with previous decisions of the Commission, in concluding that the judge is disqualified from presiding over cases involving the lawyer. | |
| 02/27/17 | WVCJC 1.2, 2.2, 2.9, 2.11 and Comments; Family Court Rules 43(d) and 45; and Trial Court Rule 25.12 | Disqualification | JIC Advisory Opinion 2017-09. A recently elected family court judge previously served as a mediator in child custody cases. The judge requested an advisory opinion with regard to matters on which the judge formerly served as mediator, which are scheduled with the judge for modification of parenting plans, child support, and related aspects. The Commission noted the importance of a judge maintaining independence, integrity, and impartiality, actually and including the appearance of these same qualities. The Commission determined that having served as a mediator in a case would not per se disqualify the judge from presiding, unless the specific issues before the judge are the same issues heard by the judge as mediator. When the issues are identical, the Commission noted that the judge should voluntarily self-disqualify. Even where the issues are not identical, the Commission advised that the judge should disclose the prior service on the record and provide the parties with the opportunity to file a motion to recuse. | |
| 02/24/17 | WVCJC 2.11 (A)(1), 2.11(A)(5), and 2.11(C) | Disqualification | JIC Advisory Opinion 2017-08. A recently elected family court judge formerly served as assistant prosecutor in the county where the judge presides. During the judge’s time as county prosecutor, the judge handled all magistrate court cases and felony preliminary hearings, and prosecuted some felony cases in circuit court, but did not work on any abuse/neglect/or juvenile matters. The judge requested clarification on the issue of whether or not the judge should be disqualified from hearing any cases involving any individual that the judge previously prosecuted. Whenever a current or former relationship presents a reasonable question of a judge’s impartiality, a question of disqualification arises warranting analysis. Based upon the facts of this situation, and applying the balancing test established in Tennant, the Commission determined that the judge would not be per se disqualified from handling all cases involving individuals that the judge may have previously prosecuted. The Commission did go on to stress the importance of the judge disclosing the nature of the relationship in each and every case involving such individuals and following West Virginia Trial Court Rule 17 where applicable when unable to secure a waiver on the record. (See Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 459 S.E.2d 374 (1995), and State ex rel, Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994)). | |
| 02/02/17 | WVCJC 2.11 (A) and (C), and Comment 5 | Disqualification | JIC Advisory Opinion 2017-06. A judge’s daughter was recently hired as an assistant county prosecutor and the judge seeks clarification as to whether or not this relationship will disqualify the judge from presiding over matters involving the elected prosecutor or other assistant prosecutors. The Commission confirmed that the judge would be disqualified from handling any cases in which the daughter is involved, but further determined that the judge would not be disqualified from cases involving the elected prosecutor or assistants provided the daughter has not done any work on these matters. The Commission further advised that the judge should fully disclose the nature of the relationship in each and every case involving the other County prosecutors, as well as follow the tenents of West Virginia Trial Court Rule 17, as applicable. | |
| 01/31/17 | WVCJC 2.11 | Disqualification | JIC Advisory Opinion 2017-04. A newly elected judge presented two (2) related questions for the Commission. Firstly, the judge formerly served as guardian ad litem in the same jurisdiction over which the judge will preside. The judge requested clarification as to whether or not it is appropriate for the judge to preside over the matters in which he formerly served as guardian ad litem. On this issue, the Commission indicated that the applicable standard is whether the current or former relationship raises a reasonable question about the judge’s impartiality. The Commission further noted that the avoidance of the appearance of impropriety is as important in developing public confidence as avoiding actual impropriety. The Commission weighed this concern against the equally strong duty that a judge has to sit where there is not valid reason for recusal. Applying this analysis, the Commission decided that the judge is disqualified from handling cases where the judge previously served as guardian ad litem. Secondly, the judge requested clarification on whether or not the judge is disqualified from hearing cases involving two attorneys that are now leasing the judge’s old office space. The judge’s spouse owns the space but the judge derives no direct income from the lease agreement. Applying the same analysis, the Commission determined that the judge is not disqualified from hearing cases involving the attorneys now renting the former office space provided that the judge fully discloses the nature of the relationship with the attorneys and follows West Virginia Trial Court Rule 17 where applicable for a six-month period. |
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| 01/06/17 | WVCJC 1.2, 2.11(A)(1) and (2), and 2.11(C) | Disqualification | JIC Advisory Opinion 2017-01. A newly elected judge is married to a person that serves as guardian ad litem in several neglect/abuse and adoption matters pending in the county where the judge sits. The judge requested the Commission to advise if the judge can preside over the cases where the spouse is serving as guardian ad litem or if the judge would be disqualified from hearing the cases. The Commission determined that it would not be permissible for the judge to preside over any cases in which the spouse appears as guardian ad litem. In making this conclusion, the Commission considered the likelihood that the juvenile would be unable to waive the conflict or apparent conflict of the relationship between the judge and spouse-guardian ad litem. | |
| 12/15/16 | West Virginia Constitution Article VIII §7; WVCJC 3.4, and WVCJC 3.4 Comment 3 | Disqualification | JIC Advisory Opinion 2016-33. A practicing judge requested an advisory opinion from the Commission with regard to voluntary participation in a “brainstorming forum” on the subject of substance abuse at the invitation of the Governor. In noting that the group may benefit from the wisdom of a judge who deals daily with the drug epidemic, the Commission concluded that it would be proper and not disqualifying for the judge to accept the invitation to participate in the brainstorming event. The Commission relied on Comment 3 to Rule 3.4 noting that participation in the brainstorming event “is not a separate office of employment in conflict with judicial duties and obligations”. | |
| 12/05/16 | WVCJC 3.8, 3.10, Application II (B); and WVSCA Administrative Order dated September 1994, Section (a)(3)(B) | Disqualification | JIC Advisory Opinion 2016-32. A senior status judge, maintaining inactive judicial State Bar membership, was recently employed in “of counsel” status with a regional law firm, engaging in a mediation practice. The judge requested the Commission to clarify the propriety of the judge expanding the of counsel practice to include appearance before any tribunal on behalf of the firm’s clients. The Commission determined that based upon Administrative Order of the Supreme Court of Appeals, engagement in a limited, of counsel, practice would not disqualify the senior status judge, but that appearance before any tribunal representing any client of the firm would. The Commission advised the judge that to represent clients of the firm would require the judge to resign as senior status judge. | |
| 12/02/16 | WVCJC 3.8, 3.10, and Application II (B) | Disqualification | JIC Advisory Opinion 2016-31. A senior status judge who does not engage in the private practice of law requested the Commission to determine if it would be permissible for the judge to assist counsel representing the judge’s child for various misdemeanor offenses and a probation violation. The judge desired to sign pleadings, make court appearances, sit at counsel table, talk/share ideas with counsel, and advise the child. After reviewing Application II(B), Rules 3.8 and 3.10, the Commission concluded the proposed representation would constitute permissible limited practice of law (Application IIB), as long as the judge met the requirements to return to the active practice of law. | |
| 10/24/16 | WVCJC 2.11 | Disqualification (Reconsideration) | JIC Advisory Opinion 2016-25. A recently elected judge requested to serve as the drug court judge even though previously serving as prosecutor and having direct oversight and professional involvement with the drug court program. This was a request for reconsideration of a previous advisory opinion. The Commission determined that the judge is able to serve as drug court judge by application of the doctrine of necessity, which allows a judge who is otherwise disqualified from handling a case to preside if there is no provision that allows another judge to hear the matter. The Commission further stated that the judge would not be able to preside or impose sentencing, or to hear any challenge/appeal, in any matter prosecuted by the judge. The Commission gave deference to the fact that the drug court is a specialty court and that the judicial circuit is a very busy three-judge circuit that would face undue hardship if the newly elected judge would not be able to preside over the drug court. | |
| 10/24/16 | WVRPC 1.12 | Disqualification | JIC Advisory Opinion 2016-24. A judge leaving office asked whether it would be permissible to mediate cases that the judge formerly presided over as a judge. The Commission determined that the West Virginia Code of Judicial Conduct (WVCJC) did not apply in this instance in that it is not applicable to mediators. The Commission directed the judge to the Office of Lawyer Disciplinary Counsel since the question the judge raised relates to the Rules of Professional Conduct (WVRPC). | |
| 10/24/16 | WVCJC 2.11 | Disqualification | JIC Advisory Opinion 2016-23. A judge requested permission to continue hearing civil matters in which the county commission and city council are party to the actions and even though the newly elected prosecuting attorney, charged by statute to represent the governmental entity(s), is the judge’s child. The Commission stated its core considerations in a disqualification determination as (1) whether the judge’s impartiality might reasonably be questioned, and (2) whether an appearance of impropriety exists. The Commission balanced these interests against the fair and timey administration of justice. Further, taking into account that the standard for recusal is an objective one, the Commission decided that the judge is not disqualified from handling the referenced civil matters as the involved governmental body(s) has an independent attorney that is not affiliated with the Prosecuting Attorney’s Office. The Commission further stated that the judge should fully disclose the nature of the relationship in accordance with West Virginia Trial Court Rule 17, where applicable. | |
| 10/24/16 | W.Va. Code §50-1-1 | Disqualification | JIC Advisory Opinion 2016-22. A magistrate requested clarification on an apparent conflict of interest where the magistrate clerk was married to a person running for the office of magistrate. The magistrate questioned if the incumbent magistrate clerk could continue to work in the capacity of magistrate clerk under the circumstances. The Commission determined the question posed to be a legal and not ethical question, thereby referring the magistrate to the judicial circuit judge pursuant to W. Va. Code §50-1-1, et seq., for clarification. | |
| 9/23/16 | 1.2, 2.1, 2.11(A)(5) and 3.1(A) | Disqualification and Extrajudicial Activity | A factual scenario was presented to the Commission whereby a judge was not re-elected and in relation to the interim period ending on December 31, 2016, wanted to know (1) if he/she could begin advertising and (2) whether he/she would be permitted to mediate cases over which he/she formerly presided as a judge. It was the Commission’s opinion that since the judge was in the final quarter of the transition period, it would be appropriate to start securing such advertising. The Commission advised that all such advertising must clearly state that the law practice will not resume until after the start of the new year. In relation to the mediation, it was the Commission’s opinion that, pursuant to the provisions of Rule 2.11(A)(5) [Disqualification], the judge would be prohibited from mediating cases over which he/she had presided as a judge. | |
| 9/20/16 | 2.11 | Disqualification | A factual scenario was presented to the Commission whereby an assistant prosecutor, who was elected as Circuit Judge, wanted to know whether she/he could serve as the adult drug court judge and/or preside over abuse and neglect cases. It was the Commission’s opinion that the judge may preside over abuse and neglect cases unless, as a prosecutor, she/he had some participation in the matter or unless there was a corresponding criminal case. The Commission advised that the judge should disclose her/his prior employment as a prosecutor in all pending abuse and neglect cases that she/he intends to hear, and if there is any objection, should disqualify herself/himself. It was also the Commission’s opinion that the judge may serve as the drug court judge unless she/he had some active involvement as a prosecutor in the underlying criminal case. | |
| 6/2/16 | 2.11(A) | Disqualification | A factual scenario was presented to the Commission whereby an assistant prosecutor, elected as Circuit Judge, was going to continue working as an assistant prosecutor in the interim period. She/he wanted to know whether she/he could preside as judge over certain types of cases. It was the Commission’s opinion that the judge could not handle any matter that was in the prosecutor’s office pre-election, including abuse and neglect cases. However, the Commission said the judge may preside over any new matter coming into the prosecutor’s office post-election or any matters arising out of the September 2016 and January 2017 Grand Juries as long as the judge had been thoroughly screened from, and had no involvement in, the case. In addition, the Commission advised that the judge should prepare a miscellaneous order containing a list of all the cases from which the judge was screened and make that order available to all defendants on the list. | |
| 12/18/15 | 2.11(A)(5)(b) | Disqualification | It was the Commission’s opinion that in a situation in which a Family Court judge previously served as a law clerk to a circuit judge who handled appeals from Family Court, the Family Court judge is not disqualified from presiding over every case previously worked on as a law clerk. The Commission stated that the Family Court judge is only required to disqualify herself/himself from those cases in which, as a clerk, she/he had a personal and substantial involvement. However, the Commission further stated that the judge must disclose the prior involvement and thereby provide the parties with the opportunity to make whatever objections they might deem appropriate. | |
| 10/29/15 | 3E(1) | Disqualification | Family Court judges do not have to recuse themselves from presiding over cases involving an attorney who is representing the Associations for the Family Case Coordinators and Family Court Secretary/Clerks. However, the judges must disclose the relationship in every case in which the attorney represents a party to a proceeding before them during the pendency of the writ. | |
| 10/28/15 | 2A, 3E | Disqualification | A candidate for magistrate cannot handle any criminal cases in his/her county if elected where a step son-in-law is the duly elected prosecutor for that county. | |
| 10/28/15 | 3E(1) (now, 2.11) | Disqualification | Family Court judges do not have to recuse themselves from presiding over cases involving an attorney who is representing their Association in a writ. However, the judges must disclose the relationship in every case in which the attorney represents a party to a proceeding before them during the pendency of the writ. | |
| 10/26/15 | 2A, 3E(1) | Disqualification | A judge who sits as a member of a Juvenile Drug Court treatment team should recuse himself/herself from participating in a matter involving a juvenile that the judge had previously represented and where the judge had been recused from the underlying detention matter. If the judge chairs the team, a new judge should be appointed to preside over the matter, but if the judge is simply a non-critical member another judge does not need to be appointed. | |
| 8/6/15 | 3E(1) | Disqualification | An Assistant Prosecutor is going to run for judge against an incumbent judge. The Commission advised that in this situation, there is no per se disqualification of the judge from presiding over cases in which the Asst. Prosecutor represents the state. The Commission also advised that there is no need to disclose the issue. | |
| 8/6/15 | None cited | Disqualification | The judge has become aware that the prosecutor has filed an ethics complaint against an Asst. Public Defender who may be romantically involved with a client charged with felony incest. The judge has removed the Asst. Public Defender from that case. The Commission agreed that the removal was appropriate but advised that the mere filing of an ethics complaint does not cause a per se disqualification. The Commission advised that the Asst. Public Defender need not be disqualified from all other criminal cases and further advised that the judge should not take any wholesale action at this time, since the ethics complaint contains accusations that have not yet been proven. | |
| 7/27/15 | 3E(1) | Disqualification | The law firm of a newly appointed judge employs a part-time associate attorney who is also employed as a full-time Assistant Prosecutor, where he handles abuse and neglect cases, juvenile matters and some felonies. The Commission advised that the judge does not have to disqualify himself/herself from every case in which the associate/Assistant Prosecutor appears before the judge but said that the judge must disclose the prior work relationship to the parties of each case in which the Assistant Prosecutor represents the state, thereby enabling any party to make any objection they deem appropriate. | |
| 4/6/15 | 3E(1) | Disqualification | A sitting judge, when practicing law prior to taking the bench, represented the parents in two abuse and neglect cases that involved two juveniles who are now before the court on pending charges. All parties have waived any potential conflict. The Commission advised that in spite of the waivers, the judge is disqualified from presiding over the juvenile matters because of his/her prior representation of the parents. | |
| 2/23/15 | 3E, 4B, 4G | Disqualification/Avocational Activities/Practice of Law | The Commission advised that an appointed magistrate who intended to engage in the limited practice of law could prepare wills and deeds and continue teaching at the college level but should refrain from drafting rental agreements and was precluded from performing any legal work for the County Commission while serving as a magistrate. | |
| 2/20/15 | 3E | Disqualification | The Commission advised that it would be improper for a magistrate’s husband to work as a process server in the magistrate’s county. | |
| 1/29/15 | 3E | Disqualification | The Commission advised that a judge who is selling rental properties to buyers who are in the criminal bonding business does not have to disqualify herself/himself from presiding over any matters involving the bail bondsmen in question or their bonding companies. However, the Commission advised that the judge must disclose the relationship in every hearing/issue involving the bondsmen in question or their bonding companies during negotiations and the pendency of the sale. | |
| 12/15/14 | 3E | Disqualification | The Commission advised that a Justice who, over two years ago, had been represented by two attorneys, and who for two years had disclosed that situation, no longer was required to advise parties of the prior representation as long as there was no factual basis that would require the Justice to do so. | |
| 12/15/14 | 6 | Disqualification | The Commission advised that an attorney in a Mental Hygiene Commissioner’s law firm may appear in front of the other Mental Hygiene Commissioner in the relevant county as long as: (1) the Mental Hygiene Commissioner’s appointment order limits her/his authority to preside only over involuntary hospitalization hearings; (2) the Mental Hygiene Commissioner has not acted as a fact finder in any Guardianship/Conservator matter, and (3) the Mental Hygiene Commissioner disqualifies herself/himself whenever a conflict develops. | |
| 3/24/14 | 3E | Disqualification | The Commission advised that an elected prosecutor who resigned that position to fill a judicial vacancy is not disqualified from presiding over any civil abuse and neglect proceeding that was pending at the time she/he ascended to the bench, in which she/he was not involved. However, the Commission advised that the judge should disqualify herself/himself from any case in which she/he did have any involvement and from any abuse and neglect matter that had a corresponding criminal case. The Commission also advised the judge to disclose her/his prior employment in all other abuse and neglect matters that were pending at the time she/he ascended to the bench, thereby permitting the parties to make whatever motions they believe to be appropriate. | |
| 3/24/14 | 3E | Disqualification | The Commission advised that a newly appointed judge who had been the elected prosecuting attorney in the county for many years, did not have to disqualify himself from presiding over every civil abuse and neglect proceeding that was pending at the time he became judge since he had not had any actual involvement in the majority of those matters. However, the Commission advised that the judge should disqualify himself from any case in which he had any level of participation and should disqualify himself from any abuse and neglect case in which there was a corresponding criminal case. The Commission also advised that the judge should disclose his prior employment in all other abuse and neglect cases that were pending at the time he became a judge and if any party objected, then he should disqualify himself. | |
| 11/21/13 | 3E | Disqualification | The Commission advised that a judge did not have to disqualify himself from handling a juvenile delinquency case involving the step-daughter of a magistrate in his county in light of the fact that all parties had asked the judge to handle the case and had waived any potential conflict. | |
| 8/30/13 | 3E | Disqualification | The Commission advised that in a situation in which the judge’s wife is a plaintiff in a lawsuit against a state agency, the judge should make a timely disclosure of the information concerning his wife’s lawsuit in every case involving the agency that comes before the judge. If a party so informed then objected to the judge continuing to handle the case, the judge must take the appropriate steps pursuant to Trial Court Rules 17.01, et seq., which govern the disqualification process. | |
| 7/31/13 | 3E | Disqualification | The Commission advised that a Judge need not disqualify herself/himself from cases involving a lawyer with whom the judge had served as co-counsel in two cases over five years ago and further advised that the judge need not disclose the prior relationship since only two cases were involved and since the judge’s social relationship with the lawyer was “even more constrained” than the business relationship. The Commission advised that the judge would, of course, have to disqualify herself/himself if the matter in which the judge served as co-counsel were to come before the court. | |
| 5/17/13 | 3E | Disqualification | The Commission advised that a Circuit Judge would not be permitted to hear the appeal of a matter over which the judge had presided while serving as a Family Court Judge. The Commission further advised that even a “waiver of conflict” by the parties would not be sufficient to overcome the need for disqualification. | |
| 12/17/12 | 3E | Disqualification | The Commission advised that a Magistrate whose father was elected Sheriff must disqualify himself/herself from any case in which the father has involvement, and must disclose that the Magistrate’s father is Sheriff in all cases that involve the Sheriff’s agency. The Commission further advised that the Magistrate should apply the “rule of necessity” exception to disqualification concerning after-hours and weekend arraignments. | |
| 10/25/12 | 3E | Disqualification | The Commission advised that a judge who is dating a DHHR supervisor does not have to disqualify himself from every case in which the supervisor has merely a supervisory role, but must disclose the relationship in every case involving members of her DHHR unit. | |
| 12/17/12 | 3E | Disqualification | The Commission advised that a Magistrate whose father was elected Sheriff must disqualify himself/herself from any case in which the father has involvement, and must disclose that the Magistrate’s father is Sheriff in all cases that involve the Sheriff’s agency. The Commission further advised that the Magistrate should apply the “rule of necessity” exception to disqualification concerning after-hours and weekend arraignments. | |
| 1/17/13 | 3E | Disqualification | The Commission advised that a Supreme Court Justice need not disqualify himself/herself from presiding over a case involving two attorneys who represented the Justice in a prior legal matter. However, the Commission advised that the Justice must disclose the prior legal relationship to all parties and thereby give them an opportunity to raise an objection if they so desire. | |
| 1/28/13 | 3E | Disqualification | The Commission advised that a judge, whose daughter and fiancé work in different local law firms, is precluded from presiding over any cases directly involving his daughter or her fiancé. The Commission further advised that the judge need not disqualify himself/herself from presiding over cases involving other members of the law firms but is required to disclose his relationship to his daughter and her fiancé in every case involving the law firms in question. | |
| 2/4/13 | 3E | Disqualification | The Commission advised that a judge involved with a Memorandum of Understanding (MOU) between the County Board of Education, the Supreme Court, and school-based truancy probation officers, need not disqualify himself/herself from any cases involving the Board of Education since the MOU specifies that the Board of Education has no supervisory authority over the probation officer and recognizes that the probation officer is an employee of the Court. | |
| 12/22/11 | 6 | Disqualification | The Commission advised that while an attorney is serving as a Mental Hygiene Commissioner, he/she is precluded from representing any party in a Guardianship/Conservatorship proceeding. The Commission further advised that a Mental Hygiene Commissioner’s law partners would ordinarily also be precluded from such representation, but, given the limited number of available attorneys in the counties in question, invoked the “rule of necessity” to permit the Mental Hygiene Commissioner’s law partners to provide, and ensure, adequate representation in Guardianship/Conservatorship cases. | |
| 12/22/11 | 3E | Disqualification | In a situation in which a Judge suspected that an attorney was submitting improper billing vouchers to the public defender system, the Commission advised that the Judge should not sign the vouchers if he/she has reason to doubt the validity of them, and further advised that the Judge should recuse himself/herself if he/she was either likely to become a witness in any proceeding concerning the validity of the vouchers or if he/she believed that his/her impartiality was in question as a result of the suspicion of improper voucher submissions. | |
| 8/3/11 | 3E | Disqualification | The Commission advised that when a circuit judge has an abuse and neglect case before her/him in which the respondents previously appeared before her/him when she/he was a Family Court Judge, she/he should not preside over any case in circuit court involving the same issues concerning which she/he made findings or rendered decisions while serving as a Family Court Judge. The Commission stated that it could not address recusal issues covered by Trial Court Rule 17 or WV Code § 51-2-8. | |
| 6/28/11 | None Cited | Disqualification | The Commission advised that when a circuit judge has an abuse and neglect case before her/him involving respondents who had previously appeared before her/him when she/he was a Family Court Judge, and when the issues in the case in circuit court had not been ruled upon during the Family Court proceedings, the judge could continue to preside over the case in circuit court. In light of this factual situation and, additionally, since the circuit judge informed the parties of the situation and neither party objected to the judge continuing to preside over the case, the Commission advised that the judge could continue to preside over the case as long as that was consistent with past decisions of the Supreme Court. | |
| 7/19/10 | 3E | Disqualification | The Commission advised that when a Judge’s son is the Chief of Police, the Judge must disclose that fact to all parties in cases involving that police agency. The Commission also advised that the Judge must disqualify herself/himself from all cases in which the Chief of Police had any involvement. | |
| 12/7/10 | 3E | Disqualification | The Commission advised that in light of the fact that an attorney in a highly volatile custody case was a former client of the Judge in a custody matter ten years ago, the Judge must recuse himself/herself from the case. | |
| 1/4/11 | 3E | Disqualification | In a situation in which the Judge has before his/her court a man who was the co-defendant of a person the Judge represented before he/she became a Judge, the Commission advised that the Judge should review the provisions of Canon 3E to determine if recusal is appropriate or necessary. | |
| 7/19/10 | 3 | Disqualification | The Commission advised that a Circuit Judge should not preside over any cases in which he/she made findings or rendered decisions while previously serving as a Family Court Judge. | |
| 7/19/10 | 3E | Disqualification | The Commission advised that a Judge whose son is the Chief of Police must disqualify himself/herself from any case in which his/her son had any involvement. The Commission further advised that the Judge must disclose his/her son’s position to the parties in all cases that involve that police department and must follow the procedures set out in State ex rel. Brown v. Dietrick, 191 W.Va. 169, 444 S.E.2d 47 (1994), which include the possible need for a hearing on any involvement the son may have had in a given case. | |
| 5/11/09 | 3E | Disqualification | The Commission advised that a per se disqualification was not required as a result of the judge’s daughter being employed at a law firm but did advise that the judge should make a full disclosure of the situation to all parties in any case in which the daughter’s law firm was involved. | |
| 3/6/09 | 3E | Disqualification | The Commission advised that a judge should not continue to hear a case in light of the fact that the judge, when in private practice, had an initial consultation, but no additional involvement with, of the parties to the case since it was probable that during the initial consultation the judge learned some disputed evidentiary facts concerning the case. | |
| 2/5/09 | 3E | Disqualification | The Commission advised that a judge’s prior representation of a respondent father in a case seven years ago did not require the judge to recuse himself from a current case involving the respondent father’s children who were born during relationships subsequent to the seven year old case. | |
| 2/5/09 | 3E | Disqualification | The Commission advised that a magistrate was not required to disqualify himself from cases in magistrate court in which involve a police officer who is a relative, but one outside the third degree of relationship set out in Canon 3E(1)(d). | |
| 2/17/09 | 3E | Disqualification | The Commission advised that a judge did not need to disqualify himself/herself from a case involving a defendant who, along with his/her family, campaigned for the judge’s election in 2008. The Commission stated that the judge had properly handled the situation by disclosing the fact of the campaigning to the attorneys in the case and to their clients, thereby giving them the opportunity to file disqualification motions if they so desired. | |
| 3/6/09 | 3E | Disqualification | The Commission advised that there was insufficient evidence to require the judge to disqualify himself/herself from a case in which an attorney for one of the parties had donated money to the judge’s election campaign. The Commission noted that the party raising the issue did not make his complaint known until two hours into the hearing. | |
| 3/6/09 | 3E | Disqualification | The Commission advised that in light of the fact that the wife of an attorney who practices in magistrate court is a magistrate assistant, the magistrate must disclose this fact to all attorneys and parties each time the attorney appears before the magistrate. The Commission advised that such a situation does not absolutely require recusal of the magistrate but that the decision should be made on a case by case basis. (A minority of the Commission felt that it would never be appropriate for the attorney to practice before the magistrate in question.) | |
| 3/23/09 | 3E | Disqualification | The Commission advised that a judge should recuse himself from all cases involving an attorney who was the judge’s campaign manager and who also is a close personal friend of the judge. | |
| 5/12/08 | 3E | Disqualification | The Commission advised a circuit judge that none of the disqualification criteria set out in Canon 3E required the judge to disqualify himself/herself from presiding over a case in which the Administrative Director of the West Virginia Supreme Court of Appeals was a party. | |
| 6/12/08 | 3E | Disqualification | The Commission advised that a judge who had a social relationship with an attorney who practiced in the judge’s court should, on an ongoing basis, disclose the existence of the social relationship to all attorneys and parties in any case involving said attorney, thereby providing all parties and attorneys with the opportunity to file any recusal motion they might think appropriate. | |
| 10/31/07 | 3E | Disqualification | The Commission advised that in a situation where a judge’s brother was involved in a divorce action, the judge would not be required to disqualify or recuse himself/herself from a separate divorce action in which the lawyer for the judge’s brother’s was counsel for one of the parties. | |
| 10/31/07 | 3E | Disqualification | The Commission advised that a judge should utilize the recusal procedures if one of the parties to a lawsuit involving the judge’s campaign manager objects to the judge continuing to preside over the case. | |
| 8/27/07 | 3 | Disqualification | The Commission advised a judge that in light of the fact that the judge’s assistant had recently married a local police officer, the judge would have to disqualify or recuse himself/herself from any cases in which the police officer at issue is directly involved. | |
| 7/31/07 | 3B & 3E | Disqualification | The Commission advised a judge that when a lawyer who regularly appears before the judge is named as a party in a lawsuit before the judge, the judge should rely on his/her own best discretion as to whether he/she should disqualify himself/herself, with the ultimate decision on the disqualification to be made, if necessary, by the Chief Justice of the Supreme Court of Appeals. | |
| 7/20/07 | 3E | Disqualification | The Commission advised a judge that since his fiancee is taking a legal assistant position with local attorney, the judge should recuse himself/herself from any cases involving the local attorney or his associates. | |
| 6/26/07 | 3E | Disqualification | The Commission advised that a judge must disqualify himself/herself only from cases that were pending in the prosecuting attorney’s office during the time period the judge was employed by the prosecuting attorney’s office. | |
| 4/10/06 | 1, 2A and 3E | Disqualification | It was the opinion of the JIC that the judge should disqualify herself in light of the fact that a relative of the judge, who was also a witness in the case, had given the judge a purse as a gift while the case was still pending. | |
| 3/29/04 | 3(B)(E) | Disqualification | Family Court Judge may continue to serve in cases without disclosure of a close personal friendship with BCSE attorney and her spouse. BCSE attorney and her spouse have vacationed with the Judge’s family and the attorney and the Judge are in social clubs together and shop together. JIC did state that in the event the Judge did feel a bias or prejudice for or against a party or lawyer because of the friendship, the Judge had a duty to disclose and/or seek disqualification. | |
| 5/26/03 | 3(E)(b) | Disqualification | Judge previously served as prosecuting
attorney. As prosecuting attorney he discussed a murder case with the
police but no leads developed. Later after he was elected Judge an
individual was identified, indicted and convicted without Judges involvement.
Individual has filed a civil habeas corpus proceeding. Parties
seek to have the Judge hear the habeas case with knowledge of the Judge
serving as prosecuting attorney during the investigation. Judge would be prohibited from hearing the habeas cases under Canon 3(E)(b) since disqualification is mandatory. While other states allow for a waiver to such disqualification, the WV Canons do not so provide. |
|
| 6/5/03 | 3 | Disqualification | Judge is a member of a homeowner’s association
which is considering filing a suit against a neighbor who has built
a shed out of compliance with the subdivision covenants and restrictions. JIC
advises that the Judge should disqualify himself in any matter involving
the attorney representing the association during the pendency of the
proceeding and for a period of six (6) months after the matter is resolved.
Additionally, the Judge should disclose the representation for an additional
period of six (6) months but that disqualification would not be automatic
for such additional period. With respect to other member of the firm of the attorney for the Association, the Judge should make appropriate disclosure during the pendency of the matter and for six (6) months thereafter. There would be no automatic disqualification for the other members of the firm. |
|
| 8/15/00 | 3E | Disqualification | A part-time juvenile referee who also has a private practice may take a legal malpractice case against a candidate for prosecuting attorney. If he becomes prosecuting attorney, disclosure must be made of the relationship. It is “quite likely” that he should disqualify himself in the event the prosecuting attorney appears before him in his official capacity. | |
| 4/13/06 | [ No Canon cited ] | Disqualification of Law Clerks | A judge requested the JIC to reconsider a prior JIC opinion which had stated that a law clerk must be screened from working on cases involving law firms with whom the law clerk had interviewed for a job. The JIC did reconsider and amend its opinion and stated that henceforth, a law clerk must only be screened from working on cases involving a law firm or lawyer from whom the law clerk has accepted an offer of employment. | |
| 12-16-02 | 3B(2) 3C(2) 3E 1 2A |
Disqualification Law Clerk Employment with Prosecuting Attorney |
When law clerk becomes employed by the Prosecuting Attorney’s Office that individual would be conflicted out of only those cases which the law clerk did research on or conferred with the judge regarding the underlying facts or legal issues relevant to various proceedings in the case. | |
| 3-17-03 | 4D | Disqualification | Judge’s wife owns rental property. Wife leases property to an individual who sublets to an attorney. Judge has no ownership, interest, control or supervisory responsibility relating to the property. JIC advises that judge does not have to voluntarily recuse himself in matters involving the attorney. | |
| 4-01-03 | 3 | Disqualification | Family Court Judge’s campaign treasure, an attorney, regularly appears for family court matters. Family Court Judge’s campaign chairperson, an attorney, does not regularly appear for Family Court matters. Citing Tennant v. Marion County Health Foundation, Inc. 194 W.Va. 97, 459 S.E.2d 374 (1995) and JIC Advisor Opinion 12/13/95, JIC advises that the Family Court Judge need not disqualify himself or herself with respect to the attorney chairperson or treasurer appearances in family court matters. The Judge should however, for a period of six (6) months from the closure of the campaign and committee, disclose the prior affiliation to the parties in litigation. Objections should follow procedures in T.C.R. 17. | |
| 6/30/00 | 3E | Disqualification | A Family Law Master who hired a case coordinator who was formerly employed by a domestic law attorney should recuse himself from hearing cases, which were in the attorney’s office during the employment of that person. | |
| 6/30/00 | 4 | Disqualification | A magistrate should not serve as a member of the supervisory committee of the Credit Union because the Credit Union is an organization, which may become involved in matters falling under the dictates of Cannon 4. | |
| 3/8/01> | 3E | Disqualification | A third party sued an attorney and his
client. The attorney is now judge in a two-judge circuit. The suit
was settled but the judge has been informed that the former client
may not be in compliance with the settlement and that such issues
could lead to civil an/or criminal liability against the former client.
There exists no per se disqualification but Cannon 3E(1) requires
an on the record disclosure. In response to a separate inquiry, a judge would be disqualified in hearing a case in which he represented the co-defendant. If the case involved a separate matter the Cannon 3E(1) disclosure should be made. |
|
| 09/09/02 | 3 | Disqualification | Judicial officer is not per se disqualified in: A. Criminal cases involving a police agency in which a police officer of that agency is either a witness or potential witness in a matter involving a complaint filed against the judicial officer involving ethical concerns, or B. Criminal matters where the police officer is the complainant and where such police officer is a witness or potential witness in a matter involving a complaint filed against the judicial officer involving ethical concerns. Unless some demonstration of bias or prejudice can be shown, the judicial officer has an ethical duty to hear such matters. | |
| 11/16/02 | None | Disqualification: (Brother's suit against City) | Magistrate’s brother has a pending law suit against the City. City police officers claim they cannot get fair treatment before the Magistrate because of the lawsuit and the underlying facts of the suit. A past defendant told the Magistrate of abusive treatment by the officer and comments concerning his belief that the Magistrate was bias toward the City. Brother wants Magistrate to confer with his lawyer about this matter. Magistrate is advised that he could discuss these matters with an attorney but that he would be recused in cases where he had direct involvement. | |
| 2/16/01 | 3E> | Disqualification Domestic Violence |
Family Law Masters who have spouses who are prosecuting attorneys would be per se disqualified from hearing a domestic violence matter if the prosecutor/spouse were handling the case. Where there is no direct involvement by the prosecutor/spouse, adherence to State ex rel. Brown v. Detrick, 191 W.Va. 169, 444 S.E.2d 47 (1994), would be necessary possibly requiring a separate hearing to determine the extent of involvement in the case and efforts to insulate the individual. | |
| 2/7/00 | 3E(1) | Disqualification: Disclosure (attorney as opposition for judicial office | A judicial officer is required to disclose on the record to the parties in a proceeding and their lawyers that the judicial officer and a participating attorney are in a contested judicial election. Furthermore, if the judicial officer has personal bias or prejudice concerning the attorney, the judicial officer should recuse himself or herself. | |
| 12/13/95 | 3E(1) and Tenant v. Marion Health Care Foundation Inc.1995 WL 361802 (W.Va. 1995) | Disqualification: Disclosure (attorney member of judicial officer's campaign committee) | Attorneys appearing before a judicial officer may serve on that judicial officer's campaign committee. However, the judicial officer must disclose this relationship when one of these attorneys does appear before the judicial officer so that all parties and their attorneys can make an informed decision about whether to move to disqualify the judicial officer from that particular case. | |
| 9/5/90 | [2] | Disqualification: Disclosure (cases involving law firm of attorney who prepared judicial officer's will) | Judicial officer not disqualified in cases involving law firm of attorney who prepared judicial officer's will, and no need for disclosure, when the representation is one-time. | |
| 12/12/94 | 3E | Disqualification: Disclosure (family relationship--stepchild employment) | A judicial officer whose adult stepchild lives outside the judicial officer's home and is employed by a local hospital which has a number of matters pending in litigation is not disqualified from proceedings involving the hospital if the stepchild is employed in a position in which he or she is not an officer, director, or trustee of any party and he or she is not a party or witness in any of the proceedings. The judicial officer should, however, disclose to both parties on the record the fact that a stepchild is employed by the hospital so that the parties may consider moving for disqualification. | |
| 5/16/95 | 3E(1) and Brown v. Dietrick, 191 W.Va. 169, 444 S.E.2d 47 (1994) | Disqualification: Disclosure (family relationship) | A judicial officer whose spouse is employed as an office assistant at a State Police detachment is not disqualified per se from presiding over criminal cases in which the arresting officer is a state trooper. However, the possibility of additional hearings concerning the neutrality of the magistrate would exist in these circumstances. The magistrate should disclose the spouse's employment to the parties when the State Police are involved in the case. | |
| 8/15/95 | 3E(1), State ex rel. Brown v. Dietrick, 191 W.Va. 169, 444 S.E.2d 47 (1994), and Tenant v. Marion Health Care Foundation Inc., et al. No. 22643 (W.Va., June 15, 1995): | Disqualification: Disclosure (family relationship) |
Under this canon and these cases, a per
se disqualification of a judicial officer is not required in all appearances
by a law firm before the judicial officer when the judicial officer's
child is employed by the law firm as a summer law-student clerk. Specific
information about the length of time the child has worked with the
firm, the capacity in which the child currently works for the firm,
whether the child worked on the case, and any other relevant information
which would enable the parties or their respective attorneys to make
a decision on a disqualification motion would need to be disclosed
and addressed in those cases. There is no obligation imposed on counsel to investigate the facts known by the judicial officer that could possibly disqualify the officer. The judicial officer is duty-bound to disclose them sua sponte. |
|
| 8/95 | 3E(1) | Disqualification: Disclosure (family relationship) | In a two-magistrate county, a magistrate may process traffic tickets issued by the magistrate's police officer child for those defendants who want to plead guilty or no contest and pay their fine if, based upon the defendant's initiation of contact with the magistrate court, it is clear that the defendant wants to plead guilty or no contest, the family relationship is fully disclosed by the magistrate and the defendant still wants to plead guilty or no contest and pay the fine. If the defendant indicates any reluctance, the magistrate needs to recuse himself or herself and refer the case to the other magistrate. | |
| 11/3/95 | 3E(1), State ex rel. Brown v. Dietrick, 191 W.Va. 169, 444 S.E.2d 47 (1994), and Tenant v. Marion Health Care Foundation Inc., 1995 WL 361802 (W.Va. 1995) | Disqualification: Disclosure (family relationship) | Under this canon and these cases, a judicial officer whose son is employed in the Attorney General's Office as a paralegal must disclose on the record the relationship of the judicial officer's son to the Attorney General's Office when lawyers from that office appear before the judicial officer. Following this disclosure, a judicial officer may recuse himself or herself or the parties may move for the judicial officer's disqualification. | |
| 2/19/96 | 3E(1), State ex rel. Brown v. Dietrick, 191 W.Va. 169, 444 S.E.2d 47 (1994) and Tenant v. Marion Health Care Foundation Inc., et al, 194 W.Va. 97, 459 S.E.2d 374 (1995) | Disqualification: Disclosure (family relationship) | A family law master must disclose on the record the fact that a spouse's law office associate is serving as a guardian ad litem in a case before the family law master. The family law master is not automatically disqualified from hearing the case; once the disclosure is made, however, the parties may move to disqualify the family law master. [The same would apply to any other judicial officer.] | |
| 2/7/97 | 2A, 2B, 3E(1), State ex rel. Brown v. Dietrick, 191 W.Va. 169, 444 S.E. 2d 47 (1994) and Tennant v. Marion Health Care Foundation Inc., et al, 194 W.Va. 97, 459 S.E. 2d 374 (1995) | Disqualification: Disclosure (family relationship) | At a minimum, a magistrate would need to disclose the fact that the magistrate's assistant is the spouse of the law-enforcement officer, a prosecutor or assistant prosecutor in any criminal matter heard by the magistrate. A magistrate may be disqualified from hearing a criminal matter if the spouse of the magistrate's assistant is a law-enforcement officer or prosecutor; however, there would be no per se disqualification of the magistrate in those cases unless the facts fall within Canon 3E(1)(a), (c) and (d), which set forth specific situations requiring disqualification. A case-by-case analysis would be required and the extent of the involvement of the spouse in the criminal matter would be an issue in determining if the magistrate is disqualified based on the specific facts presented. [The same principles would apply when the relationship is close family member of the assistant or of the magistrate.] | |
| 6/23/97 | 3E (1), State ex rel. Brown v. Dietrick, 191 W.Va. 169, 444 S.E. 2d 47 (1994) | Disqualification: Disclosure (family relationship) | A magistrate whose spouse is an elected member of a municipal governing council is not automatically required to recuse himself or herself from all cases involving the police department of that municipality, but the magistrate should disclose his or her spouse's relationship with the municipality when a case involving the municipal police department comes before the magistrate. | |
| 12/28/99 | 3E(1) | Disqualification: Disclosure (family relationship) | In cases involving the law firm in which the brother of the presiding judicial officer is a partner, the judicial officer must disclose the relationship on the record to all parties and must ascertain whether his or her sibling has any involvement in the case being heard. The sibling relationship does not serve as a per se disqualification. | |
| 10/24/00 | 3E | Disqualification (family relationship) | A family law master is not automatically disqualified from a case solely because his spouse is employed in a clerical position in WVDHHR in the Region in which he is serving. Disqualification, however, would be required if such spouse worked directly on the case. Disclosure of such employment should be made to the parties. | |
| 8/25/98 | 3E(1) | Disqualification: Disclosure (former attorney to criminal defendant) | There is no per se requirement pursuant to Canon 3E(1) that a judicial officer disqualify himself/herself from sentencing a criminal defendant whom the judicial officer represented in another criminal matter when the judicial officer practiced law. However, the judicial officer should disclose the former representation on the record and give the parties and their counsel an opportunity to make any motions they feel are appropriate. | |
| 11/1/95 | 3E(1) | Disqualification: Disclosure (former employment as child advocate) | It is mandatory for a family law master who formerly served as a child advocate to recuse himself or herself in those cases in which he or she served as an attorney for the child advocate office. For other cases for which the family law master had responsibility in the child advocate office, but it is unclear as to whether the family law master served as counsel in them, the family law master must disclose to the parties his or her previous employment and responsibilities as a child advocate. "There is no obligation imposed on counsel to investigate the facts known by the judicial officer that could possibly disqualify the officer. The judicial officer is duty bound to disclose them sua sponte." (15 August 1995 advisory opinion). | |
| 3/16/99 | 2A, 3(E)(1) | Disqualification: Disclosure (judicial officer's attorney in adoption proceeding) | If a judicial officer uses a local attorney to assist him/her in adopting a child, then the judicial officer must disclose this relationship in all cases in which the attorney appears before him/her. Moreover, the judicial officer should recuse himself/herself in all cases when asked to do so after the relationship has been disclosed. The above opinion applies even when the judicial officer has not actually employed the attorney or paid the attorney a retainer fee, but has named the attorney who will represent him/her in the adoption proceeding. | |
| 12/9/94 | 3E (commentary) | Disqualification: Disclosure (personal claim against insurer) | A judicial officer, sustaining property damage and personal injuries in a motor vehicle accident caused by an individual covered by liability insurance, should inform the lead counsel for the liability insurance company of the pending personal claim. In addition, when learning that this particular insurer is involved in litigation pending before the judicial officer, he or she should, on the record, inform counsel for both parties of the pending personal claim and offer them an opportunity to move for disqualification. | |
| 12/28/99 | no Canon cited | Disqualification: Disclosure (spousal relationship of law clerk) | A judicial officer has an affirmative duty to disclose to all parties involved when his or her law clerk’s lawyer spouse or the spouse’s firm appears before the court; however, the judge is not required to recuse himself or herself. The law clerk has an affirmative duty to inform the judge of any case that his or her spouse has participated in either through the law firm or on his or her own so that a "Chinese wall" may be built around the case in order to ensure that the law clerk does not participate in any manner with the handling of that case. | |
| 2/19/02 | 3CE | Disqualification: Employment as paralegal in law firm | A case coordinator must be disqualified in pre-mediation screening activities where his impartiality might reasonably be questioned because of his previous work with the law firm. The responsibility for adhering to this requirement rests with the judge. | |
| 11/25/96 | 3E(1)(b) | Disqualification: Employment (former employment as a part-time assistant prosecutor) | A judicial officer who is a former part-time assistant prosecutor must recuse himself or herself in any cases which were pending in the prosecuting attorney's office while the judicial officer served as a part-time assistant prosecuting attorney. The judicial officer should also disqualify himself or herself from any criminal cases about which he or she communicated with anyone while acting as assistant prosecuting attorney or any criminal cases about which he or she knew of communications with other attorneys in the prosecuting attorney's office before those cases came to the prosecuting attorney's office. A judicial officer should disclose information that the judicial officer believes the parties or their lawyers might consider relevant to the question of disqualification even if the judicial officer believes there is no real basis for disqualification. | |
| 8/9/94 | 3E(1)(a) & (b) | Disqualification: Employment (former employment as child advocate) | Family law masters who had been child advocates are required to recuse themselves from hearing certain cases related to the former employment. In addition to cases the judicial officer initiated while a child advocate, disqualification is required when the judicial officer acting as a child advocate: had served as a lawyer in a matter presently in controversy; had practiced law with a lawyer involved in a matter now in controversy; or has personal knowledge of facts currently in dispute. | |
| 9/17/93 | 3E(1)(b) | Disqualification: Employment (former employment as prosecutor) | A judicial officer who was formerly a prosecuting attorney is prohibited from hearing civil cases involving defendants who were also defendants in criminal cases when the judicial officer was a prosecutor. [Advisory opinions of 6-7-85 made under the former Code and of 1-5-93 made under the current Code were referenced.] | |
| 1/5/93 | 3E(1)(b) | Disqualification: Employment (former employment with prosecutor's office) | A judicial officer may not hear criminal cases handled by a prosecutor's office during the judicial officer's prior employment with that office. Such disqualification is not subject to waiver. [Advisory opinion of 6-7-85 made under the former Code dealing with when remittal applies to disqualification was referenced.] | |
| 3/16/99 | 3E(1) | Disqualification: Employment (former employment with public defender's office) | A judicial officer who was formerly employed as an attorney for the public defender's office must recuse himself/herself in all cases in which he/she served as an attorney and must disclose his/her prior employment in all other cases involving the public defender's office. | |
| 4/30/97 | 3E(1)(b) | Disqualification: Employment (former law practice associate) | A family law master may not hear any cases in which one of the parties is represented by a former private law firm associate of the family law master if the former associate was representing the party at the time of the law firm association. However, a family law master may hear cases which came to the law firm after the family law master left; but for a reasonable period of time after leaving, the family law master should disclose this former relationship in such cases. | |
| 11/16/98 | 3E | Disqualification: Employment (former law practice partner) | It is inappropriate for a judicial officer, whose former law partner worked as a part-time assistant prosecuting attorney handling juvenile and child abuse and neglect cases, to act as a circuit judge with regard to juvenile and child abuse and neglect cases in which the former law partner has or will appear as assistant prosecuting attorney. This disqualification continues for any case begun while the judicial officer and former partner were practicing together. The judicial officer would not be automatically disqualified from other matters involving the prosecuting attorney's office during the time the former partner was an assistant prosecuting attorney if the former partner was not personally involved in those matters because of the "Chinese wall" the judicial officer and former partner built when the judicial officer was in private practice. The judicial officer, however, should disclose his or her relationship with the former partner in all cases that come before him or her in which the former partner was involved as an assistant prosecuting attorney or in which the prosecuting attorney's office was involved. The disclosure requirement applies to any case opened by the prosecuting attorney's office while the judicial officer and former partner had their partnership arrangement. | |
| 8/10/94 | 3E(a) | Disqualification: Employment (former service as guardian ad litem) | A mental hygiene commissioner who served as a guardian ad litem of a person in an incompetency proceeding is disqualified from hearing a petition for appointment of a guardian or conservator of that person. | |
| 2/17/95 | 2A & 3E | Disqualification: Employment (judicial officer's association as special counsel with law firm having litigation interests with party appearing before the judicial officer) | A judicial officer who is associated as special counsel with a law firm is disqualified from serving on a panel to decide a petition for rehearing filed by a party having litigation interests in other matters involving the judicial officer's law firm. [This apparently is a situation in which the judicial officer is a retired judge recalled to service.] | |
| 3/9/95 | 3A, 3B(1), 3E | Disqualification: Employment (judicial officer's employment of secretary formerly employed by prosecutor) | A judicial officer is not disqualified from presiding over criminal cases as a result of employing a secretary who formerly worked in the prosecuting attorney's office where the secretary handled no grand jury investigations and very few criminal indictments. The work of a secretary in the office of the prosecuting attorney does not place the secretary in the position of preparing cases, developing strategies, or interviewing witnesses and therefore would not result in a conflict sufficient to justify disqualification of the employing judicial officer. | |
| 6/7/85 | 3C | Disqualification: Employment (URESA cases brought when judge was prosecutor) | Judicial officer should disqualify self from cases brought under the Revised Uniform Reciprocal Enforcement of Support Act while he or she was prosecuting attorney in county where he or she now sits as judicial officer. | |
| 2/25/94 | 3E(1)(d)(ii) | Disqualification: Family relationship | A judicial officer is disqualified from presiding at proceedings in which a nephew by marriage is an attorney. | |
| 2/7/97 | 3E(1)(d)(i)(ii) (iii) (iv) | Disqualification: Family relationship | The employment of the third cousin of a judicial officer as a paralegal/office manager by the prosecuting attorney would not have any effect on the judicial officer's handling of criminal matters. | |
| 12/5/89 | 3C & 3D | Disqualification: Family relationship | Judicial officer married to police chief is disqualified from sitting on any cases involving chief's department, unless disclosure made of relationship and agreement obtained from all lawyers and parties. | |
| 2/25/94 | 3E(1)(d) | Disqualification: Family relationship | A magistrate whose spouse is a prosecuting attorney is disqualified from being involved with all criminal cases, even those handled solely by an assistant prosecuting attorney. Disqualification in such a situation extends to handling search warrants and domestic violence petitions as well as to conducting initial appearances and plea proceedings. | |
| 9/23/92 | 3C & 3D | Disqualification: Family relationship | A judicial officer whose spouse is secretary to a prosecuting attorney is disqualified from presiding in criminal cases involving the prosecutor's office unless disclosure of the relationship is made and a written agreement is signed by all parties and lawyers; the agreement shall become part of the case file. | |
| 11/3/95 | No CANON cited | Disqualification: Family relationship | The spouse of a part-time family law master may be employed by a church for which the part-time family law master is a trustee without raising any relevant ethical implications regarding the position of the part-time family law master. | |
| 4/12/93 | 3E(1) | Disqualification: Family relationship | A judicial officer is prohibited from hearing any matter presented by a sole practitioner who is the employer of the judicial officer's spouse. | |
| 12/12/94 | 2A & 3E | Disqualification: Family relationship | A judicial officer whose spouse is employed by a corporation providing services to court-referred juveniles is disqualified from hearing cases involving the corporation, and the judge may not refer juveniles to the corporation. | |
| 12/28/99 | 3E | Disqualification: Family relationship | A judicial officer elected in the same county in which his or her child is elected county prosecutor is disqualified from hearing any court proceedings involving the prosecuting attorney’s office in that county. | |
| 3/16/99 | 3E(1) | Disqualification: Family relationship | A judicial officer should disclose his/her spouse's employment as an attorney with the Bureau of Child Support Enforcement since the Bureau reviews recommended orders of family law masters and occasionally seeks enforcement of court orders. Because the judicial officer does not have contact with the cases until they have been processed by the family law master, the disclosure, including a brief description of the spouse's job, may be made at the circuit clerk's office or may be made by the family law master. | |
| 4/14/00 | 2A | Disqualification: Family relationship | In order to avoid the appearance of impropriety, a family law master may not preside over cases in which his or her spouse has acted as mediator. | |
| 4/5/95 | 3E(1) | Disqualification: Family relationship (son of magistrate assistant is a bail bondsman) | A magistrate must recuse himself or herself in any case in which the son of his or her magistrate assistant serves as a bondsman and the bond becomes an issue. | |
| 3/1/93 | 3E(1) and commentary | Disqualification: Family relationship (brother's employment) | It would be improper for a judicial officer to hear cases in which the officer's brother, who is an attendance director with a board of education, is a party or has to testify in a matter before the court. | |
| 1/20/95 | 3E(1)(d)(ii) | Disqualification: Family relationship (child's fiance) | Since there is no provision in the Code of Judicial Conduct allowing it, where a judge's son or daughter is engaged to an attorney who routinely represents a party in uncontested divorce cases before the judge, the parties may not waive any conflict of interest in those cases. Because the judge's impartiality might reasonably be questioned, the judge must recuse himself or herself from cases in which a son's or daughter's fiance is an attorney. | |
| 3/1/93 | 3E(1)(c) | Disqualification: Family relationship (daughter's employment) | A judicial officer is not disqualified from hearing cases involving attorneys in a law firm employing the officer's daughter when the daughter is married and not a member of the judicial officer's household. | |
| 9/2/94 | [3E] | Disqualification: Family relationship (daughter's law practice) | It is permissible for a family law master to hear a case in which a party has been represented in another, non-domestic matter by an attorney who is the daughter of the master. | |
| 12/15/95 | 3C(4) & 3E(1)(d)(ii) | Disqualification: Family relationship (placement of judge's attorney child on circuit court appointments lists) | It is permissible
for an attorney child of a judge who is practicing law in the judge's
circuit to be placed on the circuit court criminal-case appointments
list if it is in compliance with the administrative order of the
Supreme Court of Appeals specifically detailing the procedures by
which the child may be appointed from the list and if either another
sitting judge or a special judge presides over cases and proceedings
in which the judge's child is counsel of record. Appointments must
be made strictly on a rotation basis and the orders appointing the
child must be signed by the other judge or the special judge hearing
the matter.
The parent judge may instruct the grand jury generally by giving standard instructions to cover all cases that may be considered in a given term and would not relate specifically to any case or charge involving one of the judge's child's clients or cases. The parent judge may conduct general indoctrination of the whole jury panel as to their duties, responsibilities, etc., so long as the indoctrination is generic and not specific with regard to participate in the selection of any petit jury when his or her child is representing either a criminal defendant or a party in a civil action. |
|
| 6/14/95 | 3(E)(1) and 3(B)(1) | Disqualification: Family relationship (son-in-law of assistant to a judicial officer is a criminal defendant) | A recusal by a judicial officer is required in a case involving the son-in-law of an assistant to the judicial officer when the assistant discusses the matter with the judicial officer previous to an initial appearance of the son-in-law. A judicial officer is required to hear matters assigned except those requiring disqualification; since there is not a relationship otherwise requiring recusal, a judicial officer is not automatically disqualified from hearing subsequent matters involving the assistant's son-in-law unless the assistant has discussed the facts of the case with the judicial officer prior to the subsequent hearing. | |
| 3/12/87 | 3C | Disqualification: Financial interest | Judicial officer is not disqualified from case which will affect land taxes in county where spouse owns land, because spouse's land is on border and taxes are paid to neighboring county. | |
| 6/10/02 | 3E(1)(a) | Disqualification: Judges defendant in non-related law suit | Judge asked whether being named a defendant, as individual, in a civil action so personalized the action as to foreclose the Judge from sitting on other actions in which the attorney, bringing the action against the Judge, appeared. Citing Advisory Opinion dated April 8, 1987, and Tennant v. Marion Health Care Foundation, Inc., 1994 W.Va. 97, 459 S.E.2d 374 91995), the Commission advised that such facts did not require disqualification and that each case must be determined in its own. The determining factors being whether the judge had a personal bias or prejudice which would require the judge to recuse himself. Disqualification is not required per se. | |
| 10/14/88 | 2A & 3C | Disqualification: Financial interest (stock ownership) | Improper for judicial officer to sign default in case in which bank in which he or she owns stock is a party. | |
| 2/19/96 | 3E(1)(d)(iii) | Disqualification: Financial interest (stock ownership) | Ownership of slightly more than 100 shares of Bell Atlantic stock by a judicial officer and spouse is a "de minimis interest." A "de minimis interest" is "an insignificant interest that could not raise a reasonable question as to a judge's impartiality." A judicial officer with this amount of ownership interest in Bell Atlantic stock would not be disqualified from hearing two default judgment proceedings in which Bell Atlantic is a party plaintiff. | |
| 6/24/02 | NONE | Disqualification: Financial interest (stock ownership) | Judge owns stock in various companies which are also involved in litigation pending before the Judge. A judge seeks assistance in determining whether divestiture of stock in such litigant company would resolve conflict problems or whether recusal was necessary. JIC declined to decide, stating that the matter should be handled as a motion to recuse and handled under relevant trial court rules. | |
| 4/8/87 | 3C | Disqualification: Other (legal action pending against judicial officer) | Judicial officer is not disqualified from case because attorney bringing case has brought action in another court against same judicial officer in his or her official capacity. | |
| 6/23/97 | 3E (1) (a) | Disqualification: Other (personal bias) | A magistrate is required to recuse himself or herself in cases involving an attorney with whom the magistrate has a perceived conflict such that the magistrate feels that he or she cannot render a fair and impartial decision. | |
| 6/23/97 | 3A (1) | Disqualification: Other (previous involvement with MADD) | A magistrate with extensive involvement with the Mothers Against Drunk Driving advocacy organization before taking office should be disqualified from hearing alcohol-related offenses which were committed before the magistrate took office, including any case in which a prior conviction for such offense is used to enhance an alcohol-related offense committed after the magistrate took office. | |
| 6/7/85 | 3C & 3D | Disqualification: Other (remittal) | When judicial officer is disqualified due to previous practice with an appearing lawyer during pendency of the case, remittal of disqualification under Canon 3D is not available; when judicial officer is disqualified because of relationship to appearing lawyer (and resulting financial interest), remittal is available. | |
| 6/11/87 | 3C | Disqualification: Other (remote pecuniary interests) | Decision to recuse is to be made by the justice involved, not other members of the court; justice need not disqualify self from a case in which he or she has remote or possible interest. | |
| 3/4/96 | 4G & 6B(2) and Administrative Rule on Retired Judges Admitted to Senior Status (a)(3)(B) | Disqualification: Other (senior-status justice or judge representing clients before the Supreme Court) | A senor-status justice or judge is disqualified from assignment to duty as a special justice on the Supreme Court if the justice or judge, while engaged in a limited practice of law, had any matters filed in the Supreme Court or represented any clients before that court. | |
| 11/16/01 | 3(E)(1) | Disqualification: Wife's employment | Family Law Master’s wife was to engage in a practicum and internship with an entity, which does counseling services. Citing Cannon 3 and Brown v. Detrick, 191 W.Va. 169, 444 S.E.2d 47 (1994) and Tennant v. Marion County Health Care Foundation, Inc. 194 W.Va. 97, 459 S.E.2d 374 (1995), the inquirer was advised to disclose his wife’s employment in any cases the agency was involved in and to recuse himself in cases in which his wife was involved in any way. | |
| 11/5/90 | [2 & 3C(1)] | Disqualification: Family relationship (uncontested divorce proceedings where circuit judge is close relative of family law master in same circuit) | It is neither a conflict of interest nor an appearance of impropriety for a circuit judge to hear only uncontested divorce matters even though a close relative presides as the family law master in the same circuit. This opinion is limited to the specific facts raised in the request for an advisory opinion. | |
| 12/21/15 | None Cited | Disciplinary Responsibilities | A judge does not have to report a lawyer who may be overbilling Public Defender Services and has signed an agreement to self-report unless the judge has made a finding that the lawyer overbilled and that his/her actions were unethical. Otherwise, it is the responsibility of the PDS Director to report the matter if he concludes that an ethical obligation was breached by the lawyer. | |
| 08/21/18 | None Cited | Disciplinary Action/Suspension from Judgeship | JIC Advisory Opinion 2018-18. A Circuit Judge (“Judge”) serving a two-year suspension from judgeship requested an advisory opinion concerning implementation of a transition plan back to office. The Judge designed the plan to span a six month period with the goal of re-acclimating the Judge to issues and developments through a series of ongoing interactions with various people prior to resuming the judgeship. Among those included in the plan were Senior Status Judges, the Judge’s administrative assistant, prosecutors, public defenders, agency representatives, probation officers, magistrates, and the day report center, among others. The Judge expressed a desire to begin interviewing for anticipated staffing changes and meeting with various entities to gather and exchange information. After considering the Judge’s request, the JIC concluded that the Judge would not be permitted to engage in any transition activities while in a suspension status. The JIC emphasized that a Judge suspended for serious misconduct and wrongdoing must expect to fully incur the consequences. In closing, the JIC advised the Judge that the Judge would not be permitted to retake the bench until the balance of the fine is paid in full. | |
| 5/9/03 | None | Disclosure of Information in Juvenile Files | Family Court Judge has obtained information from a juvenile file, which he believes is relevant to his decision in a Family Court Case. Case is now before Circuit Court and Family Court Judge seeks advisory opinion on the extent to which he may reveal the juvenile file information. JIC advises that the issues raised are legal rather than ethical and that the Family Court Judge would be bound by the Circuit Court ruling regarding disclosure of such information. | |
| 08/02/18 | WVCJC Rules 2.15(B) and 2.15(D); Rules of Practice and Procedure for Family Court Rule 6 | Disclosure; Confidentiality; Reporting Requirements | JIC Advisory Opinion 2018-15. A Family Court Judge requested an advisory opinion concerning the obligation to report a lawyer to the Office of Disciplinary Counsel (“ODC”) for testing positive in a drug test dispensed as part of a custody matter in which the lawyer was self-represented. The Family Court Judge was concerned in particular about the confidentiality requirements set forth in Rule 6 of the Rules of Practice and Procedure for Family Court. The JIC reviewed Rules 2.15(B) and 2.15(D) of the Code of Judicial Conduct which oblige a judge to report a lawyer to an appropriate authority when there is a violation of the Rules of Professional Conduct or a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer. The JIC concluded that there was no obligation for the Family Court Judge to report the attorney given the facts as set forth, but the JIC did urge the Family Court Judge to be cognizant of the developing circumstances and revisit the issue and possibility of meeting any reporting responsibilities/obligations in the future as might be appropriate based upon developments. | |
| 10/24/16 | WVRCrimP 6(e)(3)(C)(i) | Disclosure | JIC Advisory Opinion 2016-26. A judge requested permission to receive in advance a list of all the defendants and related criminal charges that the prosecutor was planning to present to a grand jury. The judge’s rationale was to ensure preparedness for the grand jury proceedings. The Commission determined that since a judge facilitates the grand jury process and is responsible for presiding over the report at the conclusion of the grand jury’s work that it is appropriate for the judge to request of and receive from the prosecutor a list of names and charges in advance of each grand jury session, even though the grand jury proceedings are secret and the role of the judge is limited. | |
| 08/2/19 | WVCJC Rule 4.1(A)(9) |
Disclosure | JIC Advisory Opinion 2019-18. During the summer before a student’s third year of law school, the student received a certification from the Supreme Court of Appeals of West Virginia stating that the student complied with all of the requirements of Rule 10, et. seq., of the Rules for Admission to practice Law, Relating to Legal Assistance by Law Students to Persons Unable to Pay for Services, and that their supervising attorney was a Prosecuting Attorney. The student worked at the Prosecutor’s Office and graduated law school in May of 2012. They did not receive another Rule 10 certification after graduating from law school. The student did not take the July 2012 bar examination, the first time the student sat was February 2013. While awaiting the results of the examination, they were hired as a full-time “assistant prosecutor.” The Prosecutor’s Office and the individual were mistaken believing that the individual could practice pursuant to Rule 10 while awaiting exam results. However, the individual did not comply with the Rule 10.2(a) requiring that the bar examination be taken immediately after graduation. Shortly after being employed as an “assistant prosecutor” they were notified that they did not pass the bar examination and the prosecutor’s office had to terminate employment. In 2019 this individual was appointed to serve as Magistrate and they have decided to run for re-election in 2020. In their advertisement the slogan “The Right Experience, The Right Choice” is used. Directly underneath the slogan, the candidate’s experience is listed, including working as an “Assistant Prosecutor.” Rule 4.1.(A)(9) states that “a judge or judicial candidate shall not knowingly, or with reckless disregard for the truth, make any false or misleading statement.” Based upon this Rule, the Commission determined that the Magistrate cannot use the term “assistant prosecutor” in campaign advertisements since they never served in that capacity. The Commission found it would be a material misrepresentation and leave the public with the mistaken impression that the magistrate has a license to practice law in West Virginia. Therefore, they may not state that they served as an assistant prosecutor but may say that they interned or clerked at the Prosecutor’s Office. | |
| 11/2/15 | None Cited | Disclosure of Information | The JIC declined to answer whether a judge should open confidential abuse and neglect files to the Commission on Special Investigations to look at an attorney’s billing practices because it is a legal inquiry instead of an ethical one. | |
| 10/27/15 | 3B(11) | Disclosure of Information | A judge may advise a local attorney who was not a party to or lawyer in a domestic violence proceeding of a credible threat made to him by the Respondent during a hearing. The judge’s revelation should be limited to the identity of the person threatening physical harm and an accounting of the threats involved. | |
| 1/14/14 | 3D(2) | Duties of Judicial Office | The Commission advised that a judge who had become aware of a possible conflict of interest on the part of an attorney appearing before him in a divorce case should raise the conflict facts with both parties to confirm his understanding of them and then give each side an opportunity to take appropriate action. | |
| 3/28/95 | 4D(3) | Employment | A judicial officer may not work part-time as a salesperson for a business entity. | |
| 04/30/19 | WVCJC Rule 3.12 | Employment | JIC Advisory Opinion 2019-11. A Magistrate Judge may have a yard sale at their home so long as they are not raising money for a non-profit or charity. | |
| 12/14/18 | WVCJC Rules 2.13(A)(1) & (2) | Employment | JIC Advisory Opinion 2018-21. It is not nepotism for a judge to hire the sister-in-law of his spouse’s first cousin as it falls outside the third-degree of relationship and the individual is the most qualified candidate. | |
| 01/18/18 | NA | Employment Decision | JIC Advisory Opinion 2018-01. A Chief Circuit Judge (“Chief Judge”) requested a JIC advisory opinion concerning the propriety under the Code of Judicial Conduct of considering candidates for a Probation Officer position, which would report primarily to another Circuit Judge in the Circuit (“Judge”), where one of the candidates is the daughter of that Judge’s Judicial Assistant. The JIC stated that the decision to hire a probation officer is strictly within the purview of a Circuit Judge and Court, and declined to issue an advisory opinion on the Chief Judge’s inquiry, but recommended that the Chief Judge address this employment issue with the Administrative Director of the Supreme Court of Appeals of West Virginia. The JIC further suggested that the Chief Judge consider whether it would be appropriate for the Chief Judge to disclose the relationship in the event the daughter of the Judge’s Judicial Assistant is hired into the Probation Officer position. | |
| 9/27/17 | WVCJC Rules 2.1 and 3.1; Personnel Manual Section 11.3 | Outside Employment | JIC Advisory Opinion 2017-20. A Magistrate requested permission to engage in outside employment in the form of serving as a substitute teacher in the same county in which the Magistrate serves as magistrate. The Magistrate requested consideration in the alternative for permission to serve as a substitute teacher in neighboring counties of the judicial circuit in which the Magistrate serves. The Magistrate formerly submitted a request for approval for this same outside employment to the Administrative Director of the Supreme Court of Appeals of West Virginia, which the Administrative Director denied. The JIC deferred to the decision of the Administrative Director citing Section 11.3 of the Personnel Manual of the Supreme Court of Appeals of West Virginia. The JIC further referenced Rule 2.1 and Rule 3.1 of the Code of Judicial Conduct for the Magistrate’s current and future consideration involving any outside employment situation. | |
| 10/24/14 | 4G, Art. VII, Sec. 8 of the W. Va. Constitution | Employment (Practice of Law) | The Commission advised that a lawyer who was pursuing a direct commission from the West Virginia Air National Guard as a reservist Judge Advocate General (JAG) and who also considering running for a Family Court Judge position, could not concurrently serve as a Family Court Judge and a JAG officer, since serving as a JAG officer would clearly constitute the practice of law, in violation of Article VIII, Section 8, of the West Virginia Constitution. | |
| 5/3/12 | 6C | Employment | The Commission advised that a part-time Mental Hygiene Commissioner may serve concurrently as a part-time, appointed, Municipal Judge, with the understanding that any resulting conflicts of interest must be handled appropriately. | |
| 3/21/11 | None cited | Employment (spouse) | The Commission advised that a Judge’s wife should not serve as CEO and President of Hospice, due to the fund raising activities that would be involved. The Commission also advised that a Judge’s wife should not become an officer in the local Democratic Women’s Club. In addition, the Commission advised that the Judge’s wife need not resign from her position as a member of a bank board, but pointed out that the Judge would be recused in all cases involving that bank. | |
| 12/14/09 | Article VIII, Section 7 of the W. Va. Constitution | Employment | The Commission advised that, pursuant to the West Virginia Constitution, a Mental Hygiene Commissioner, as a judicial officer, may not, at the same time, hold another office, in this case, the position of part-time assistant prosecutor. | |
| 7/3/07 | Article 8, Section 7 of the WV Constitution | Employment | The Commission advised that it would not be appropriate for a Mental Hygiene Commissioner to concurrently serve as a Municipal Judge. | |
| 6/12/08 | None cited | Outside Employment | The Commission advised a judge that he/she should instruct an attorney who the judge was going to hire as a law clerk, and who was also serving as a member of the County School Board, that the attorney should, pursuant to the requirements of the personnel manual for judicial employees, request direction and/or authorization from the Administrative Director of the Supreme Court as to whether or not he/she could engage in outside employment as a member of the County School Board. | |
| 6/12/08 | None cited | Outside Employment | The Commission advised a Mental Hygiene Commissioner that if he/she was to become a Probation Officer, he/she should, pursuant to the requirements of the personnel manual for judicial employees, request direction and/ or authorization from the Administrative Director of the Supreme Court concerning whether or not he/she could engage in outside employment as a Mental Hygiene Commissioner. | |
| 6/14/07 | Article 8, Section 7 of the WV Constitution | Employment | The Commission advised that it would not be appropriate for a Mental Hygiene Commissioner to concurrently sit as an elected member of a city council. | |
| 5/21/07 | None Cited | Employment | The Commission advised that there would be no impropriety if the wife of the judge’s bailiff were to take a secretarial position in the prosecuting attorney’s office. The Commission further advised that the judge should be careful not to discuss cases from the prosecuting attorney’s office with his bailiff while the bailiff’s wife worked for that office. | |
| 2/18/05 | 3C(4) §62-12-5(d) |
Employment | Due to the provisions of W.Va. Code § 62-12-5(d), a Judge may not appoint as probation officer a cousin and relative of the sixth degree, common ancestors being great-grandparents. Canon 3C(4) standing alone would not prohibit such appointment so long as the employment was based on merit and not nepotism or favoritism. | |
| 2/14/03 | 1 and 2 | Employment (magistrate assistant who also is employed as dispatcher for police department) | Magistrate seeks to employ a magistrate
assistant to fill a vacancy. Prospective employee wants to keep position
as dispatcher for local police department. JIC advises that Magistrate
could not employ such person if she would continue to work as dispatcher
since such activity would distort the appearance of independence and
impartiality, which a court and a judicial officer must maintain. |
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| 03-10-03 | 4D(3) | Employment Supermarket |
Magistrate may not be an employee of a supermarket and further may not be an employee of any business entity unless such participation falls within the limited exceptions in Canon 4D(3). | |
| 2/19/96 | 4D(3) | Employment | A judicial officer may not serve as the director for a West Virginia company that is not: (a) a business closely held by the judicial officer or members of the judicial officer's family or (b) a business primarily engaged in investing the financial resources of the judicial officer or the judicial officer's family. | |
| 12/13/96 | 4D(3) | Employment | A judicial officer may not serve as a real estate agent or as the employee of a real estate agency [not owned and operated by the judicial officer]. | |
| 10/23/96 | 2A(4) & B(1) | Employment (as a private investigator) | A magistrate may not act as or accept employment as a private investigator | |
| 7/5/94 | 3C | Employment (hiring) | A judicial officer may appoint any person to a position over which the judicial officer has appointment authority if the appointment is on the basis of merit and does not involve favoritism. | |
| 1/5/93 | 3C(4) | Employment (hiring, nepotism) | It would be improper for a judicial officer to employ a sister-in-law. | |
| 08/05/02 | NONE | Employment: Law Clerks seeking employment |
After a Clerk interviews for a job with a prospective employer, be it private or public, that clerk should be screened from participation in any case involving that prospective employer. Judge is not obligated to recuse himself in such cases so long as the clerk is properly screened. | |
| 11/5/90 | 2B & 3B(4) | Employment (marital relationship of magistrate clerk and chief judge) | Code of Ethics not violated, and magistrate clerk need not be terminated when her husband becomes chief judge, where: (1) her appointment was by a former chief judge; (2) she subsequently married an attorney who later became a judge. This opinion is limited to the specific facts raised in the request for an advisory opinion. [This opinion does not address the possibility of the appearance of impropriety, Canon 2A, or W.Va. Code 6-10-1 ("The employment of his wife at public expense by any official or employee of the state is expressly prohibited.").] | |
| 8/29/97 | 3C (4) | Employment (nepotism, employment of probation officers) | A circuit judge's relative within the third degree is not disqualified on the basis of nepotism from being selected as a probation officer in the same circuit if (1) the judge is not involved in any manner in the selection process; (2) the selection criteria do not show favoritism; (3) the same objective standards are applied to all candidates interviewed, including numerical scores; (4) the selection is based on merit; and (5) the relative will not appear before the judge or handle any cases in which he presides. | |
| 12/11/97 | Canon 3C(4) and W. Va. Code § 6-10-1 | Employment (official court reporter for a circuit court could not continue employment if fiancee appointed as judge in that circuit) | The fiancee of a candidate for appointment for the unexpired term of a circuit court judge may not continue her employment in the position of official court reporter for the circuit court if the candidate is appointed as judge in that circuit nor would she be able to continue her employment if she and the candidate were married when the candidate is appointed as judge in that circuit. | |
| 05/07/02 | 6, 4 | Employment: Senior Status Judge as hearing examiner for DEP |
Senior Status Judge may not serve as hearing examiner for DEP because Canon 4(F) limits such judicial activity only to those activities expressly permitted by law. See also June 17, 2002 Advisory Opinion. | |
| 06/17/02 | 4F 6B, 6E, 6F |
Employment: Senior Status/Retired Judge as independent examiner for DEP |
Senior Status/Retired Judge seeks an opinion as to whether employment as an independent examiner for the Division of Mining and Reclamation of the Department of Environmental Protection would be permitted under the Canons. A previous opinion requested by a different Judge stated that Canon 4F precluded such service. In this request more detail regarding the role of the independent examiner was provided. The Commission concluded that while Canon 6 permits a senior status Judge to serve as an arbitrator or mediator, Canon 4F prohibits such senior status Judge from the exercise of other judicial functions unless expressly authorized by law. Therefore, a senior status Judge may not be employed as an independent examiner since that function would require performance of judicial functions. Since Canon 6B(3) and Canon 6E specifically exempt retired judges not admitted to senior status, from the application of Canon 4F, such retired judges may serve as such independent examiner. | |
| 6/14/95 | [No canon cited] | Employment (spouse's employment) | It is not a violation of the Code of Judicial Conduct for the spouse of a judicial officer to be employed as a director of development at a private school which the judicial officer's children attend. | |
| 11/11/91 | 2 | Employment (spouse of magistrate assistant as private process server) | Improper for magistrate assistant's spouse to engage in the business of private process service, because of the appearance of impropriety. It presents an actual conflict in those cases in which the magistrate would have to determine the sufficiency of process. And it may result in the public perception that an advantage could be gained in the magistrate court by use of the services of that process server. [The same would appear to apply with respect to the spouses of other employees of the judicial officers.] | |
| 12/17/04 | 3B(7) & 3D | Ex Parte Communication Disciplinary Responsibilities |
JIC found that a mental hygiene commissioner could communicate with medial staff to make sure that the security of the court and individual appearing in court is maintained and that the respondent is provided the best possible hearing. The merits of case are not to be discussed; no procedural or tactical advantage is to result from the conference, and the commissioner is promptly to notify all parties of the substance of the conference. JIC noted that the mental hygiene commissioner is appointed by and serves at the will and pleasure of the chief circuit judge. If the judge becomes aware of ethical violations of a commissioner, the judge has an obligation to comply to Canon 3D’s disciplinary responsibilities. |
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| 11/16/17 | WWVCJC Rule 2.9; West Virginia Code §27-6A-2 and 27-6A-3 | Ex parte communication | JIC Advisory Opinion 2017-22. In response to a defense attorney’s request for a competency/criminal responsibility exemption for a 20-year old defendant charged with sexual offenses, the presiding Circuit Judge (“Judge”) granted the request and chose the psychology/psychiatry evaluator (“Professional”) as the defense attorney did not have one in mind. The Professional was referenced as the “Court’s expert” from that point on in the proceedings. The JIC noted that a number of things is unclear from the Judge’s inquiry including the position of the prosecuting attorney, the credentials of the Professional, and the extent of evaluation that has so far been conducted. The Judge described that the Professional contacted the Judge and indicated that he/she has major concerns about the defendant and that he/she would like to discuss the same with the Judge. The Judge expressed belief that there are safety issues involved, and all things considered, asked if the Judge would be at liberty to speak with the Professional directly ex parte about the concerns. Following a review of Rule 2.9 of the West Virginia Code of Judicial Conduct, including Comments [1] and [2], and West Virginia Code §§ 27-6A-2 and 27-6A-3, the JIC not only found that the proposed conversation with the Professional would certainly constitute improper ex parte communication, but further deemed it necessary for the Judge to hold a hearing on the competency issues, report that the Professional has not yet produced a written report, disclose that the Professional selected by the Judge has requested to speak with the Judge, and follow West Virginia Code § 27-6A-3. The JIC expressed that the Judge’s diligence on these items would further clarify the proper procedure concerning the matter and related issues. | |
| 12/01/16 | WVCJC 2.9(A); and W.Va. Code § 48-9-301(a)-(c) | Ex parte communication | JIC Advisory Opinion 2016-30. A judge requested the Commission to determine if private, off-the-record communication with a court-appointed guardian ad litem in a particular matter would violate the prohibitions against ex parte communications. In addition to reviewing Rule 2.9 concerning ex parte communications, the Commission considered the court’s decision in In re Christina W., 219 W. Va. 678 S.E.2d 770 (2006). The Commission determined that in the vast majority of the cases, a judge should obtain the consent of the parties before speaking with the guardian ad litem. The Commission further recognized that there may be instances where a child is exposed to high risk of probable harm necessitating a “quick ex parte disclosure to the judge in order to safeguard that child’s best interest.” The Commission cautioned that a judge in this situation should make reasonable efforts to avoid receiving factual information that is not part of the record. Further, the Commission stated that a judge in this situation should take care not to nullify the responsibility to decide the matter. | |
| 2/12/07 | 3 | Ex parte communication | It was the opinion of the JIC that the provisions of Canon 3B(7) addressed the issues raised by the Judge. Canon 3B(7) permits, where circumstances require, ex parte contacts to handle scheduling or administrative matters if provision is made by the Judge to promptly notify all other parties of the ex parte communication and allow them an opportunity to respond. |
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| 5/21/98 | 4A | Extra-judicial activities (serving on a police department advisory board) | A judicial officer may not serve on an advisory board of a police department which participates in reviewing hiring, training and employing of law-enforcement officers and support personnel; paying overtime to presently employed law-enforcement officers and necessary support personnel; and procuring equipment, technology and other material directly related to basic law-enforcement functions. An individual from a local court such as a court administrator would be better suited to serve on such an advisory board. | |
| 09/10/19 | WVCJC Rule 2.10 | Extrajudicial Activity | JIC Advisory Opinion 2019-21. A Judge was asked to appear on a nationally broadcast podcast hosted by Nancy Grace, a well-known legal commentator and journalist. The discussion would be regarding “cold cases” in other states. Based upon Rule 2.10, the Commission found that it would be improper for the Judge to discuss cold cases from other states since those matters could one day come before a court. | |
| 06/03/19 | WVCJC Rules 3.1(A)(B)(C), 3.12, 3.15(A)(1)(B)(C) | Extrajudicial Activity | JIC Advisory Opinion 2019-14. A recently appointed Magistrate Judge occasionally teaches National Rifle Association (NRA) handgun safety classes a few times a year. The Commission reviewed Rule 3.1, 3.12 and 3.15 and determined that the Magistrate may continue to teach NRA handgun safety classes as long as it does not interfere with the Magistrate’s duties. Potential students should be screened for cases currently in in the Magistrates’ courtroom and the Magistrate should voluntarily recuse themself from presiding over those matters whenever appropriate. Finally, the Magistrate should follow the reporting requirements of the Rule 3.15 and list the training on their annual financial disclosure statement. | |
| 08/21/18 | WVCJC Rule 3.7(A)(4) | Extrajudicial Activity | JIC Advisory Opinion 2018-19. A Circuit Judge (“Judge”) was requested to participate in a WV State Agency (“Agency”) video to highlight and explain the importance of successful truancy measures for juveniles. The Agency selected the Judge because of the Judge’s participation and track record in collaborating with the Agency on such measures in the past. The Judge would like to participate in the video, be identified as a judge, and wear the robe during filming. The JIC reviewed the West Virginia Code of Judicial Conduct Rule 3.7(A)(4) which establishes that a judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or administration of justice. Included in this description are speaking engagements, appearances, and recognition. Given that the endeavor described by the Judge is educational and designed to benefit the legal system, the JIC concluded that the Judge’s participation in the video, as described, would be appropriate. | |
| 07/10/18 | WVCJC Rules 3.1(B) and 3.1(C) | Extrajudicial Activity; Judicial Independence, Integrity, and Impartiality | JIC Advisory Opinion 2018-14. A Magistrate ran for an unexpired term, was elected, and commenced to fill the unexpired term immediately upon certification of the election, in accordance with State law. Prior to being elected, the Magistrate was a lifetime law enforcement professional, with memberships in various professional associations. The Magistrate requested a JIC advisory opinion concerning if the Magistrate would be able to remain in these organizations while serving as Magistrate. The JIC turned to the West Virginia Code of Judicial Conduct, Rules 3.1(B) and 3.1(C), which permit a judge to participate in lawful extrajudicial activities provided that they do not lead to frequent disqualification of the judge, or do not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. Because the organizations in which the Magistrate is a member are clearly aligned with law enforcement officers, who frequently appear in the Magistrate’s courtroom, the JIC concluded that the Magistrate could not belong to these organizations while serving as Magistrate. | |
| 05/16/18 | WVCJC Rules 3.11(B) and 3.11(C), and Comments | Extrajudicial Activities; Financial Remuneration Activities | JIC Advisory Opinion 2018-12. A Circuit Judge (“Judge”) ran for an unexpired term and was elected to the position of circuit judge. Pursuant to State law, the Judge was to fill the unexpired term immediately upon certification of the election results. The Judge has a partner in private practice but that partner has not worked for six months. The Judge and partner decided to commence the process of closing the practice, ceasing all advertising, removing signage, and no longer answering the office phone. The Judge requested an advisory opinion on the issue of whether or not it would be permissible to leave the law office open for a period of time after the Judge takes office for the purpose of closing files, collecting outstanding fees, and closing out cases. The Judge affirmed that after taking office absolutely no legal work would be performed, although before taking office the Judge would file motions to withdraw and/or substitute counsel for all active cases. Upon considering the facts presented by the Judge, and the Rules and Comments to 3.11(B) and 3.11(C) of the West Virginia Code of Judicial Conduct, the JIC determined that it would be appropriate and permissible for the Judge to keep two employees on staff to assist in the winding down process. The JIC noted that the Rule clearly contemplates a winding down of the law practice, but pointed out that it should be accomplished as soon as practicable without serious financial detriment to avoid situations which might require disqualification of the Judge or other violations of Rule 3.11. | |
| 05/07/18 | WVCJC 3.11(A) and 3.11(C) | Extrajudicial Activities; Financial Remuneration Activities | JIC Advisory Opinion 2018-11. A Magistrate requested a JIC advisory opinion concerning the propriety of purchasing a building located in close proximity to the local Courthouse. The Magistrate is one of eleven licensed attorneys in the county. The building currently is owned and being sold by a retiring attorney, and presently houses two tenants that are practicing lawyers. The Magistrate is interested in purchasing the building and permitting the two tenant attorneys to continue as occupants. The Magistrate indicated that the tenant attorneys do not frequently appear in Magistrate Court. The Magistrate requested the JIC to address, in the alternative, the option of a family member possibly buying the property provided the Magistrate obtains no financial or material benefit. The JIC reviewed Rules 3.11(A) and 3.11(C) of the West Virginia Code of Judicial Conduct which provide that a judge shall not engage in otherwise permissible financial activities if they interfere with the proper performance of judicial activities, lead to frequent disqualification of the judge, involve the judge in frequent transactions of continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves, or result in violation of other provisions of the Code of Judicial Conduct. The JIC distinguished prior related advisory opinions where judges were permitted to rent property to lawyers noting that in those instances, the judicial officers owned the property prior to taking the bench. In conclusion, the JIC advised that the Magistrate could not buy the building and rent to lawyers while the Magistrate is a judicial officer because to do so would create a possible recusal situation when the lawyers would need to appear in Magistrate Court. The JIC reminded the Magistrate that judicial duties must always take precedence and that the Magistrate should presumptively avoid creating possible disqualification scenarios while in office. In closing, the JIC stated that a family member would be permitted to purchase the building as long as the Magistrate obtained no financial or material benefit. | |
| 04/23/18 | WVCJC generally) | Extra-judicial activity | JIC Advisory Opinion 2018-08. A Magistrate requested an advisory opinion on whether or not participation in a street/block yard sale in the Magistrate’s residential neighborhood was permissible. The JIC reviewed the West Virginia Code of Judicial Conduct (“WVCJC”) and concluded that the Magistrate’s participation in this sale/activity would not violate any of the WVCJC rules governing extrajudicial activities since participation in the sale/activity would involve the Magistrate selling only the items that belong to the Magistrate for personal gain. | |
| 04/12/18 | WVCJC Rules 1.2, 3.1(A)-(C), 3.12, and 3.15 | Extra-judicial activity; Compensation and Reporting; Judicial Independence, Integrity, and Impartiality | JIC Advisory Opinion 2018-06. JIC Advisory Opinion 2018-07. The Chief Justice of the Supreme Court of Appeals of West Virginia and the Administrative Director for the Supreme Court of Appeals of West Virginia (“Court”) have requested a JIC advisory opinion concerning the propriety of a Court vendor company sponsoring travel for a team of Court professionals, including a Circuit Judge (“Judge”) and two technology employees. The Court and the vendor are engaged in a well-established contractual relationship wherein the Court has engaged the vendor company to create an e-filing system. The purpose of the trip is to visit the vendor company offices out-of-state to gain further training and insight into the implementation of the system. Determining that the visit is designed to improve the court system as a whole, given the nature of the relationship, and consideration of Rules 1.2, 3.1(A)-(C), 3.12, and 3.15 of the Code of Judicial Conduct, a majority of the JIC agreed that the Judge and technology employees are permitted to make the trip at the vendor company expense but that the Judge would be required to report the value of the costs paid by the vendor company on the appropriate judicial financial disclosure forms. The JIC also stated that the Judge must be cognizant of the requirement that official judicial duties take precedent over the trip. | |
| 04/03/18 | WVCJC Rules 1.2, 3.1(C), 3.7(A)(4), and 4.2(A)(1) | Extra-judicial activity; Judicial Independence, Integrity, and Impartiality | JIC Advisory Opinion 2018-06. A recently appointed Circuit Judge (“Judge”) that is planning to run in an upcoming election requests if it would be permissible to attend a fundraiser dinner which benefits a treatment program for men and women convicted of domestic violence. The program is often ordered by judges in abuse and neglect cases or as a term of probation in domestic violence convictions. The JIC considered the language of 3.7(A)(4) which states that a judge may participate, appear or speak at, receive an award or recognition from organizations and entities concerned with the law, legal system, or administration of justice. In upholding the principles of Rules 1.2, 3.1(C), 3.7(A)(4), and 4.2(A)(1), notably that a judge should act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and that avoids impropriety and the appearance of impropriety, the JIC determined that the Judge cannot attend the luncheon. The JIC notes that this determination is consistent with JIC Advisory Opinion 2016-15 in which the JIC told a family court judge that it was not permissible to serve as a keynote speaker at a luncheon given by the same organization because that organization represented only one interest in a particular area of law and its members could potentially appear before the judge on a recurrent basis. The JIC also referenced a JIC Advisory Opinion issued on January 12, 2000, on this same basis. | |
| 02/06/18 | WVCJC Rules 3.8, 3.12, and 3.15 | Extra-judicial activities | JIC Advisory Opinion 2018-04. A Circuit Judge (“Judge”) requested the JIC if it would be permissible for the Judge to serve as an Executor/Administrator to a great nephew’s estate, and to receive the statutorily mandated compensation of up to 5% (five percent) for the service. The Judge described that there was a close familial relationship, that the service would be as personal representative and not attorney, and that the service would in no way interfere with the Judge’s judicial duties. The JIC reviewed the West Virginia Code of Judicial Conduct Rules 3.8 and 3.12, and pointed out that Rule 3.8 clearly forbids a judicial officer from serving as a fiduciary except in very limited circumstance involving a family member and only if it does not interfere with regular judicial duties. And while the JIC clarified that the great nephew familial relationship falls outside of the definition of a member of the judge’s family as set forth in the West Virginia Code, the JIC referenced Advisory Opinion 2014-01 which extended “close familial relationship” to an extended family member with whom the judge had a close relationship or a friend who the judge treats like a member of the family. Based upon these principles, the JIC concluded that the Judge would be permitted to serve as executor for the great nephew’s estate and to be compensated for such pursuant to State law. The JIC reminded the Judge that pursuant to Rule 3.15 of the West Virginia Code of Judicial Conduct, the Judge must report any compensation received on the extra-judicial compensation form. | |
| 12/11/17 | WVCJC Rules 3.8, 3.12, and 3.15 | Extra-judicial activities | JIC Advisory Opinion 2017-24. A Circuit Judge (“Judge”) requested the JIC if it would be permissible for the Judge to serve as a personal representative to an aunt and deceased uncle, as Conservator and Administrator, respectively, and to receive the statutorily mandated compensation of up to 5% (five percent) of either estate. The Judge clarified that the aunt and uncle do/did not reside in the county where the Judge sits as judge. The JIC determined that the proposed activities fall within the statutory definition of the “judge’s family” (reference Rule 3.8 (A)), and that the Judge would be permitted to serve provided that the Judge continues to be mindful that these activities must not interfere with the Judge’s regular judicial duties, or otherwise pose a conflict. The JIC further clarified that the West Virginia Code of Judicial Conduct Rule 3.12 permits a judge to accept reasonable compensation unless the acceptance of the compensation would undermine the judge’s independence, integrity, or impartiality. The JIC reminded the Judge of the compensation reporting responsibilities of the Code of Judicial Responsibility Rule 3.15. | |
| 12/04/17 | WVCJC Rule 3.8; W. Va. Code § 44-3A-36 | Extra-judicial activities | JIC Advisory Opinion 2017-23. A Magistrate requested the Commission to consider if it would be permissible for the Magistrate to continue to serve as a fiduciary commissioner for the County Commission and concurrently serve as Magistrate. The role of fiduciary commissioner to the County Commission involves handling certain tasks related to estates such as facilitating the final estate settlement, corresponding with beneficiaries, and supervising the probate process including issuance of quarterly reports. For each estate, the fiduciary commissioner receives approximately $500 (five hundred dollars). The Commission reviewed Rule 3.8 of the Code of Judicial Conduct, as well as West Virginia Code § 44-3A-36 concerning the powers of a fiduciary commissioner. Relying on the aforesaid, notably Rule 3.8 of the West Virginia Code of Judicial Conduct, which the Commission described as “forbid[ing] a judicial officer from serving as a fiduciary except in a very limited circumstance involving a family member and only if it does not interfere with his or her regular judicial duties”, the Commission concluded that the Magistrate cannot concurrently serve as Magistrate and a fiduciary commissioner given the inherent conflicts of interest. | |
| 08/22/17 | WV Const. Article VIII, section 7 and WVCJC 3.4 | Extra-judicial activities | JIC Advisory Opinion 2017-18. A judge requested an advisory opinion on the question of whether the judge can serve on the Board of Governors for an institution of higher education, where pursuant to W. Va. Code §18B-2A-1, et seq., the Governor make all appointments to the school’s Board of Governors. The Commission reviewed the Constitution of West Virginia, Article VIII, § 7, and Rule 3.4 of the Code of Judicial Conduct, in concluding that the judge cannot serve on the school’s Board of Governors as such an appointment would violate both the Constitution and Code of Judicial Conduct, noting that “No … judge … shall hold any other office, or accept any other appointment for public trust, under this or any other government …” Constitution of West Virginia, Article VIII, § 7, and that “[a] judge shall not accept appointment to a governmental committee, board, commission or other governmental position, unless it is one that concerns the law, the legal system or the administration of justice” Rule 3.4, West Virginia Code of Judicial Conduct. | |
| 06/29/17 | WVCJC 1.2 and 3.7 | Extra-judicial activities | JIC Advisory Opinion 2017-15. A judge requested the Commission to consider if it would be permissible for the judge to participate in a charitable fundraiser for the local United Way. The judge indicated that participation would not involve direct fundraising but would rather involve participating as a contestant/dancer in a fundraising competition, where votes for the respective participants equate with fundraising dollars. Relying on Rules 1.2 and 3.7 of the Code of Judicial Conduct and the concept that public confidence in the judiciary can easily be eroded by conduct that creates the appearance of impropriety, the Commission concluded that participation as a competitor/dancer would not be permissible, but that attendance at the fundraiser would be permissible. A distinguishing fact was that since the public would be pledging fundraising dollars based upon the judge’s performance, this form of participation would be considered “solicitation” and therefore inappropriate. | |
| 03/30/17 | WVCJC 3.1(A), 3.7(A) (2), and 4 | Extra-judicial activities | JIC Advisory Opinion 2017-11. A judge requested the Commission to consider if it would be permissible for the judge to participate in a charitable fundraiser where the judge’s spouse was one of the event organizers. The judge’s participation would not include fundraising, planning, or solicitation of any kind, just active participation in the event. The Commission determined that it would be fine for the judge to participate in the event, and for the spouse of the judge to be a part of the event planning process. The Commission cited the language of the applicable rules, and noted that “A judge may engage in extracurricular activities, except as prohibited by law”, provided that such participation does not interfere with the proper performance of the judge’s judicial duties, the activities do not lead to frequent disqualification, the participation does not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality, and the participation does not appear to a reasonable person to be coercive. The Commission further reminded the judge of the importance of the limitations found in 3.1(A), 3.7(A) (2), and 4. | |
| 02/24/17 | WVCJC 3.1, 3.7(A)(2), and 3.7(A)(6) | Extra-judicial activities | JIC Advisory Opinion 2017-07. A judge requested the Commission to clarify whether or not the judge would be permitted to run for election to the church parish council, or in the alternative, would be permitted to accept an appointment to a seat on the parish finance committee, a non-elected position. The Commission determined that the judge would be able to engage in the proposed activities but reminded the judge that judicial duties must take precedence over all extracurricular activities. The Commission also advised the judge to follow the tenents of Rules 3.1 and 3.7(A)(2) and (6). | |
| 01/19/17 | WVCJC 2.10, and 3.7 | Extra-judicial activities | JIC Advisory Opinion 2017-03. A magistrate is considering pursuit of a master’s degree in social work, and is contemplating a thesis on a community response to domestic violence. The magistrate seeks clarification from the Commission on the propriety of pursuing the thesis project given that the magistrate presides over domestic violence cases as part of magisterial duties. The Commission opined that the magistrate would be permitted to do the thesis on a community response to domestic violence, including discussing procedure, statistics, and similar items, provided that the magistrate does not express any opinions on what the magistrate might decide with any specific set of facts or issues. | |
| 01/19/17 | WVCJC 3.7 | Extra-judicial activities | JIC Advisory Opinion 2017-02. A judge requested the Commission to clarify whether or not participation as a board member of a local non-profit hospital owned by the city would be permissible. Relying on the language of Rule 3.7, which says that while a judge may serve as an officer, director, or trustee of such a local organization, if it is likely that the organization or entity will be involved in proceedings before the judge, then such participation is prohibited. The Commission determined that the judge would be precluded from serving on the hospital board. | |
| 12/01/16 | WVCJC 3.1, 3.7(A)(2), and 3.7(A)(6) | Extra-judicial activities | JIC Advisory Opinion 2016-29. A newly elected family court judge asked if it would be possible to continue to serve on several local boards after taking office. After reviewing the nature of the judge’s participation on each of the boards, determining that there was limited contact with any persons that the judge might come into contact with as a judge, and considering that in the role of board member the judge had no responsibility for disbursement of funds, the Commission concluded that the judge may continue to serve on the boards as requested. The Commission further reminded the judge that judicial duties must take precedence over all extracurricular activities. | |
| 12/01/16 | WVCJC 3.1, 3.7(A)(2), and 3.7(A)(6) | Extra-judicial activities | JIC Advisory Opinion 2016-28. A recently elected family court judge asked if it would be possible to continue to serve as secretary/treasurer for a non-profit company. After reviewing the nature of the judge’s participation in the corporation, preparing/presenting financial reports, and signing an occasional check if no other executives were available, the Commission concluded that the judge may continue to serve on the board as requested, subject to the limitations set forth in Rules 3.1 and 3.7. | |
| 10/24/16 | WVCJC 3.1, 3.7(A)(6), and 3.12 | Extra-judicial activities | JIC Advisory Opinion 2016-27. A newly elected judge requested the Commission to consider if it would be permissible after assuming the bench to continue to serve as one of four trustees for a charitable trust and to continue to receive quarterly compensation of $3,750 (maximum). The Commission determined that the judge may elect to serve as a trustee and to receive the described compensation. The Commission further determined that the judge should disclose the relationship to fellow trustees that are attorneys who may appear before the judge in other matters pursuant to 2.11 (C). | |
| 7/19/16 | 3.7(A)(2) | Extra-judicial activities | The Commission was presented with a factual scenario whereby a Magistrate-elect wanted to know if it would be permissible to accept an invitation to take part in a United Way-sponsored Fall Kickoff Fundraiser motorcylcle ride from St. Louis, Missouri, to Clarksburg, WV. It was the Commission’s opinion that the magistrate-elect could take part in the ride as an individual, but not as a magistrate-elect, specifying that the magistrate-elect’s name could not be used in any promotional materials or advertisements and that the magistrate-elect could not solicit donations from the public. | |
| 6/14/16 | 1.2, 3.1(C) and 3.7(A)(4) | Extra-judicial activities | It was the Commission’s opinion that it would not be proper for a judge to be the keynote speaker at a luncheon sponsored by an organization that facilitates the Batterers Intervention Program since, in light of the group’s activities, the members of the organization could likely appear before the judge on a recurrent basis. | |
| 9/1/15 | Proposed Canon 3.4 | Extra-judicial activities | The questions posed to the Commission were (1) whether a Mental Hygiene Commissioner can serve on the U.S. Commission on Civil Rights State Advisory Committee (SAC) and (2) whether it would be permissible for a judicial employee of the Administrative Office of the Supreme Court of Appeals of West Virginia to be a SAC member. Concerning question (1), the Commission advised that before accepting any appointment by the governor or any other official, a judge should seek the approval of the Chief Justice. Concerning question (2), the Commission advised that since it is only charged with giving advisory opinions to judicial officers, it could not address whether a judicial employee could serve on the SAC. | |
| 3/10/15 | 4 | Extra-judicial activity | The Commission advised that a magistrate could serve as a member of the board of a non-profit organization, subject to the limitations set forth in Canon 4C, that is, as long as the service does not reflect adversely on the judge’s impartiality and as long as the organization is not likely to be engaged in proceedings that would ordinarily come before the magistrate. The Commission also advised that the magistrate should not solicit funds for the organization and should not give investment advice to the organization. | |
| 11/10/14 | 4 | Extra-judicial activity | The Commission advised that a judge could participate in a Citizen’s Law School program in light of the fact that said participation would be limited to welcoming the public and introducing the speakers, without answering any substantive questions and without receiving any remuneration. | |
| 8/5/14 | 4 | Extra-judicial activities | The Commission advised that a magistrate could not be a general partner in a pizzeria enterprise while also serving as a magistrate, since Canon 4D(3) provides, with limited exceptions, that a judge shall not serve as an officer, director, manager, general partner, or employee of any business. The Commission advised that, in this case, none of the limited exceptions to the general prohibition were applicable. | |
| 5/21/14 | 4 | Extra-judicial activities | The Commission advised that it would not constitute a violation of the Code of Judicial Conduct for a magistrate to attend meetings of the Regional Jail Authority’s Cost Containment Committee since Canon 4B permits a judge to participate in extra-judicial activities concerning the administration of justice. However, the Commission also advised that, at such meetings, the magistrate should not make any pledges or promises concerning future actions or decisions, other than a faithful and impartial performance of the duties of the office. | |
| 4/3/14 | 4D(1) & 4E | Extra-judicial activities | The Commission advised that it would be appropriate for a judge to post a bond for his sister in connection with his sister becoming the Administratrix of the estate of their recently deceased grandmother since the action involved a member of the judge’s family; since all parties had agreed to the resolution of the matter and since it was highly unlikely that the action would interfere with the proper performance of the judge’s judicial duties, be perceived as exploiting the judge’s position or create an appearance of impropriety. | |
| 2/7/14 | 4C(3) | Extra-judicial activities | The Commission advised that it would be improper for a judge to participate in Family Refuge Center’s domestic violence related “STOP Team,” given the makeup of the group, and the fact that the core members of the group (prosecutor’s office, law enforcement) regularly appear before the judge on behalf of the state in contested cases. The Commission also advised that it would be inappropriate for the judge to send a letter of support on behalf of the Family Refuge Center to aid the Center’s attempt to obtain grant money. | |
| 1/14/14 | 4 | Extra-judicial activities | The Commission advised that a Family Court Judge could publish a book, and receive compensation for it, as long as the source of such monetary payments does not give the appearance influencing the judge’s performance of judicial duties or give the appearance of impropriety and as long as the judge makes the requisite reporting of the compensation that is received. | |
| 1/14/14 | 4E | Extra-judicial activities | The Commission advised that, recognizing the breadth of the term “member of the judge’s family,” a judge could honor the request of a recently deceased mentor and close friend that the judge serve as the personal representative of the deceased friend’s estate. | |
| 11/15/13 | 4C(3) | Extra-judicial activities | The Commission advised that a judge could volunteer to participate in the SPARKS program to help provide tutoring, life skills, and fitness instruction, to students in grades five through twelve as long as it was not likely that the organization would appear before the judge in adversary proceedings; as long as the judge did not solicit funds for the organization; and as long as the judge obtained the prior approval of the Chief Judge of the Circuit. | |
| 10/8/13 | 4 | Extra-judicial activities | The Commission advised that in a case in which a judge was retiring, was not going to serve as a Senior Status Judge, and was not going to participate in mediation or any other legal function, it was permissible for the local county bar association to honor the judge by raising funds for Legal Aid of West Virginia instead of soliciting money for a retirement banquet or reception. | |
| 8/30/13 | 4D(2) and 4D(4) | Extra-judicial activities | The Commission advised a recently appointed judge that he/she could retain the 25% interest the judge had in a real estate company until the company could be sold without serious financial detriment. However, the Commission advised that if the company were to expand, the judge should immediately divest himself/herself of his/her share of the business. The Commission also advised that the judge could lease or sell his/her share of his/her former office building to his/her former law partners who are also his/her first cousins. | |
| 7/31/13 | 4C(3) | Extra-judicial activities | The Commission advised that a Mental Hygiene Commissioner should not concurrently serve on the Day Report Center Board since it is likely that the Day Report Center officers would regularly be involved in court proceedings at various judicial levels and would regularly be engaged in adversary proceedings in the various courts. | |
| 7/31/13 | 4C(3) and 4D(5) | Extra-judicial activities | The Commission advised that a magistrate would be permitted to serve on the Glenwood Volunteer Fire Department Board provided that such service did not contravene the provisions of Canon 4, including the requirements not to solicit funds for the Fire Department, not to give investment advice to the Fire Department and not to serve on the board if the Fire Department would likely be engaged in proceedings that would ordinarily come before the magistrate. The Commission further advised, pursuant to Canon 4D(5) that the magistrate could use an extra concert ticket that was given to the magistrate’s husband for volunteer work he had performed at a golf tournament. | |
| 12/19/12 | 4G | Extra-judicial activities | The Commission advised that a recently elected judge may not prepare a legal document related to his prior employment since that would constitute a judge engaging in the practice of law, which is prohibited by the provisions of Canon 4G. | |
| 1/11/13 | 4A | Extra-judicial activities | The Commission advised that a Magistrate may not continue to serve on the Board of Directors for a County Emergency Ambulance Authority since it is likely that the organization and its employees will be involved in proceedings that would ordinarily come before the Magistrate. | |
| 2/23/12 | 4D(3) | Extra-judicial activities | The Commission advised that if a person who is a general contractor and sole proprietor of a company should be elected Magistrate, he/she should examine the provisions of Canon 4D(3) concerning the restrictions on outside financial activities. The Commission, while pointing out that the issue is premature, also advised that the individual should be aware of a judicial officer’s obligation to obtain authorization from the Administrative Director of the Supreme Court before engaging in outside employment. | |
| 12/22/11 | 4 | Extra-judicial activities | In a situation in which a Judge was considering becoming an “auxiliary coach” on his/her daughter’s basketball team, a position that requires ultimate approval by the Board of Education, the Commission advised that the Judge could serve in such a position but would then be precluded from presiding over any cases involving the County Board of Education. | |
| 11/10/11 | 4C and 4D | Extra-judicial activities | The Commission advised a recently appointed Judge that he/she should sell his/her interest in a building that he/she owned with his/his former law partners; that he/she could continue to have an utilize a LLC checking and trust account until he/she has received all of the fees to which he/she became entitled prior to becoming a Judge; that the Judge should sever an insurance policy with a former law partner that would permit the beneficiary attorney to purchase the other’s interest in the law firm, and that the Judge could continue to serve on the West Virginia Bar Foundation as long as the Judge does not participate in public fundraising activities. | |
| 9/20/11 | 4 | Extra-judicial activities | The Commission advised that a Magistrate should not volunteer to serve on a committee to identify water system problem areas in light of the fact that the relevant city is likely to be involved in court proceedings either before the Magistrate or other courts. | |
| 6/28/11 | 4D(3) | Extra-judicial activities | The Commission advised that the provisions of Canon 4D(3) did not serve to prohibit a magistrate from being part of a four person partnership that owns a Home Care business. The Commission emphasized the magistrate’s understanding that she/he would have to disclose the business situation to all parties in any case that might have some connection to the business. | |
| 5/17/11 | 4C(3) | Extra-judicial activities | The Commission advised that the provisions of Canon 4C(3) did not serve to prohibit a magistrate from serving on the county Extension Service Committee. | |
| 10/5/10 | 4C(3) | Extra-judicial activities | The Commission was
requested to revisit and reconsider a previously issued opinion in
which the Commission had advised that a Judge should not take part in
"Judge-Led Stakeholder Meetings," explaining that the
Commission had concluded that a Judge led meeting with stakeholders in
abuse and neglect cases who regularly appear before the judge in
contested hearings could, to those who are the respondents in those
proceedings, cast reasonable doubt on the Judge’s capacity to act
impartially as a Judge. In response to the request to reconsider that opinion, the Commission advised that they would not be issuing an opinion that approves the proposed Protocol for Judge-Led Stakeholder Meetings. |
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| 10/5/10 | 4C(3) | Extra-judicial activities | The Commission advised that when a corporation in which a Magistrate has an interest leases office space from another corporation in which an attorney has an interest, the attorney may not appear before the Magistrate in court. | |
| 12/22/10 | 4 | Extra-judicial activities | The Commission advised that a Judge could sit on the Board of Directors for the Salvation Army in light of the fact that the Judge would not be soliciting funds for the organization or taking part in fund-raisers. | |
| 3/22/11 | None cited | Extra-judicial activities | The Commission advised that it cannot issue an advisory opinion approving the participation of a Judge on a committee that is working on systemic problems with groups that will contain individuals who will later be appearing before the Judge. | |
| 5/25/10 | 4C | Extra-judicial activities | The Commission advised that a Judge should not serve as a member of the West Virginia Sesquicentennial of the American Civil War Commission Advisory Board in light of the fund-raising activities that such a position would entail. | |
| 7/19/10 | 6C and 4C | Extra-judicial activities | The Commission advised that a Mental Hygiene Commissioner could accept an appointment to serve on a county hospital board, recognizing that the hospital is not regularly involved in litigation and pointing out that the "rule of necessity" could apply in this situation since the hospital board required that one position be filled by an attorney in a county where there is a shortage of attorneys. | |
| 10/13/09 | 4 | Extra-judicial activities | The Commission advised that a Magistrate must resign from his volunteer position as President of a Citizens Fire Company Auxiliary, an organization that conducts fund raising, in light of Canon 4(C)(3)(b)’s statement that a judge should not solicit funds for an organization or permit the use of the prestige of his/her office for that purpose. | |
| 3/8/10 | 4 | Extra-judicial activities | The Commission advised that a judge should not serve on an advisory commission for a Substance Abuse Early Intervention Program because, in light of the fact that the judge could send children in cases before him to the program, such service could, in contravention of Canon 4(A), "interfere with the proper performance of judicial duties."> | |
| 3/11/10 | 4 | Extra-judicial activities | The Commission advised that a judge should not take part in "Stakeholder Meetings" relevant to abuse and neglect cases since such participation could create an "appearance of impropriety" in connection with Canon 4(C)(3)(a) which provides that a judge should not take part in "civic and charitable activities" if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or be regularly involved in adversary proceedings in any court. | |
| 6/3/09 | 4C | Extra-judicial activities | The Commission said that it would not issue an advisory opinion to a judge who had inquired whether a judicial officer was prohibited from serving upon all commissions or only those commissions in which the governor appoints the judicial officer as a member of the commission. The Commission felt that it was being asked to interpret a provision of the West Virginia Constitution (Article VIII, Section 7) and felt that such an interpretation was not within the Commission’s authority. | |
| 6/12/09 | 4C | Extra-judicial activities | The Commission advised that a judge could not accept an invitation to be a "celebrity server" at a Court Appointed Special Advocate (CASA) fund raising event in light of the language in Canon 4 of the Code of Judicial Conduct which states that a judge may not solicit funds for any organization or permit the use of the prestige of the office for that purpose. | |
| 8/11/09 | 4C | Extra-judicial activities | The Commission advised that a judge could accept an invitation to become a member of the Kiwanis Club as long as pursuant to the provisions of Canon 4 of the Code of Judicial Conduct, the organization was not engaged in proceedings that would ordinarily come before the judge; the judge did not engage in fundraising for the organization and the judge did not give investment advice to the organization. | |
| 3/23/09 | 4 | Extra-judicial activities | The Commission advised that a judge should not accept the Board of Education’s invitation to serve on the Comprehensive Educational Facilities Plan Committee since the Board of Education is an organization likely to be engaged in proceedings that would come before the court. The Commission also advised that the judge should not continue to serve as spokesperson for the Jonathan Hope Foundation, or be interviewed by the media about the foundation since it would be difficult for the public to distinguish between the foundation’s fund-raising activities and the judge’s service as circuit judge. | |
| 11/25/09 | 4 | Extra-judicial activities | The Commission advised that a magistrate could serve as a trustee on the Trustee Committee at the magistrate’s church as long as the magistrate remained cognizant of the prohibition against fund-raising activities. | |
| 11/25/09 | 4 | Extra-judicial activities | The Commission advised that, prior to the date he/she assumed office, i.e., January 1, 2009, a newly elected judge should remove himself/herself from a pending federal case in which he/she was involved. The Commission also advised that the judge could prepare fee petitions for legal work he/she performed prior to December 31, 2008, in a number of cases so that he/she could be fairly compensated for said work. | |
| 2/5/09 | 4 | Extra-judicial activities | The Commission advised that a judge would be permitted to continue to own rental property as long at the rental property business activity did not involved frequent transactions and did not involve business activity with lawyers or other persons likely to come before the judge’s court. | |
| 2/12/09 | 4 | Extra-judicial activities | The Commission advised that a juvenile referee should not be a member of the board of directors for a nonprofit charitable corporation whose purpose is to operate a drug testing laboratory for the benefit of drug courts and other treatment courts in West Virginia. The Commission also advised that a court employee who is not a judicial officer, such as a court administrator, should not serve on the board of directors for such a nonprofit charitable organization since an appearance of impropriety could be created. (A minority of the members felt the Court should address this issue). | |
| 6/11/08 | 4 | Extra-judicial activities | The Commission advised that a magistrate could serve as a volunteer at the Volunteer Fire Department’s monthly breakfasts as long as the judge was not directly involved in any of the fund raising. The Commission also advised that a magistrate could not become a member of the local Chamber of Commerce since that organization could be construed as a civic organization conducted for the economic or political advantage of its members. | |
| 3/10/08 | 4 & 5 | (1) Extra-judicial activities and (2) Political activity | Re (1): The Commission
advised that a judge could not serve on the board of directors for, or
be a member of, a foundation or organization that would regularly be
engaged in adversarial proceedings in magistrate court for the purpose
of collecting monies owed to the foundation or organization.
Re (2): The Commission advised that as a judicial officer, a judge must utilize a campaign finance committee to handle fund-raising activities. |
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| 3/24/08 | 4 | Extra-judicial activities | The Commission advised an attorney that he may remain a member of a limited liability company while he is a candidate for judicial office but would not be permitted to remain a member of the company if elected to the judicial position. | |
| 4.30/08 | 4 | Extra-judicial activities | The Commission advised that a judge should not accept remuneration or an honorarium for officiating at weddings during work hours or on weekends, or after work hours. | |
| 6/15/07 | 4B | Extra-judicial activities | The Commission advised that it would not be improper for a judge to accept an invitation to participate in an American Bar Association Workshop that dealt with product liability trials and which was open to the public. The Commission further advised that the judge should be careful not to discuss any of his/her specific pending or impending cases during his/her participation in the workshop. | |
| 6/11/07 | 4C | Extra-judicial activities | The Commission advised that it would not be improper for a judge to accept an invitation to become a member of the Red Cross Board of Directors. The Commission further advised that in such a situation, a judge must remain particularly aware of the prohibitions against soliciting funds and against using, or permitting the use of, the prestige of the judicial office for fund raising purposes. | |
| 1/22/07 | 4 | Extra-judicial activities | It was the opinion of the JIC that the Code of Judicial Conduct would not prohibit the Judge from informing the legislature about the importance of the visitation center facility as it relates to the administration of justice. However, it was the opinion of the JIC that it would be inappropriate for the Judge to organize a continuing legal education seminar that would raise funds for the visitation center facility. |
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| 12/19/06 | 4 | Extra-judicial activities | It was the opinion of the JIC, in light of the Magistrate’s representation that he/she was unaware of any cases having been filed in Magistrate Court pertaining to the Men’s Shelter, that it would not be inappropriate for the Magistrate to serve on the Men’s Shelter Board of Directors. |
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| 3/14/06 | 1 and 4A | Extra-judicial activities | It was the opinion of the JIC that, in order to protect the integrity, independence and impartiality of the judiciary, the judge should not accept the invitation of a Crisis Center to appear before and speak to a group responsible for deciding whether or not to award a grant that supported the Crisis Center. | |
| 9/17/04 | 2 (A) and (B) | Extrajudicial Activity | Family Court Judge may properly provide a reference for law school admission to a domestic violence advocate who is regularly involved in proceedings in the Judge’s Court, Canon 2(B). A Family Court Judge may not properly speak at a one-day seminar for domestic violence advocates and domestic violence attorneys, based on the fact that the seminar is not open to all members of the bar. | |
| 4/20/04 | 4(A) and (B) | Extra-judicial Activity | Judge may, on a part-time basis and for compensation, teach a CLE session for Professional Education Systems Institute, LLC and for a WVU class. | |
| 2/14/03 | 4 | Extra-judicial Activity | Magistrate may serve on a board, which is a cooperative effort of the Department of Family Medicine, the extension service of WVU and various rural health agencies. The main purpose of the Board is the recruitment of health care professionals. Service on the Board must fall within the guidelines of Canon 4. | |
| 2/6/04 | 4 | Extra-judicial Activity | Judge asks if it is proper to serve on a Multi-Disciplinary Team established to advise on a project to establish comprehensive approaches to sex offender management. Citing the commentary to Canon 4, JIC advises that such service may be permitted. | |
| 2/6/04 | 4 | Extra-judicial Activity | Family Court Judge may participate in a training video to be utilized by the Department of Health and Human Resources, Bureau of Child Support Enforcement. In the video the Family Court Judge would be explaining the court procedures followed in the Judge’s Court, as well as what documents and other evidence would be required in procedures conducted before the Judge’s Court. | |
| 3/3/04 | 1 & 4 | Extra-judicial Activity | Judge could not properly serve as Honorary Chair or on the Committee to Commemorate the Annual Children’s Memorial Flag Day, a function of For Children, Inc. JIC opinion was driven by the fact that the judge’s name would appear on the letterhead of For Children, Inc. along with the names of other organizations which would appear to have issues, clients or other matters engaged in proceedings before courts on a regular basis. JIC stated that many of the organizations would be advocates in areas regarding issues or litigation. | |
| 05/03/02 | 2, 3, 4 | Extra-judicial Activities
Family Case Coordinator |
Family Law Judge Case Coordinator may not
drive a car advertising the bonding company for which her husband is
employed. Such case coordinator should not continue to serve on the Women’s Center Board of Directors, since the organization could be engaged in proceedings that would ordinarily come before the Family Law Judge. |
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| 2/19/02 | 4(C) | Extra-judicial Activities Serving as a member of the Board of Multi-Cap |
A judge may serve on the Board of Multi-Cap
a community action agency as long as such service is within the purview
of Cannon 4C. This means that such service would be proper as
long as such organization does not appear before the judge’s court
on a regular basis and as long as the organization does not serve for
the economic or political advantage of its members. Fund raising
on behalf of the organization would also be prohibited. |
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| 3/25/99 | 4A | Extra-judicial activities (serving on police department advisory board addressing juvenile delinquency issues) | A judicial officer may not serve on an advisory board whose membership includes the prosecuting attorney, clergy, attorneys and other individuals in the community and which was created from a grant to a police department for the purpose of discussing how to lower juvenile delinquency. Instead, a court employee who is not a judicial officer, such as a court administrator, is better suited to serve on the advisory board described above (see JIC Advisory Opinion 5/21/98). | |
| 5/21/98 | 4A, 4B, 5D | Extra-judicial activities (taking public position on proposed constitutional amendment) | A judicial officer may take a public position on the issue of a proposed constitutional amendment relating to the legislature's authority to create statutory courts in this State given that a judicial officer is uniquely suited to contribute to the improvement of the law, the legal system, and the administration of justice including revisions of law. | |
| 12/22/93 | 4D(1)(b) | Financial activities (gift of rental property) | A judicial officer may receive a gift of rental property as long as renters of the property do not include the county commission, which rents space for the judicial officer's law library and the prosecuting attorney, or other entities which would likely come before the court. It would be proper for an emancipated child not living in the judicial officer's household to receive a conveyance of such property, but improper if the conveyance included other children who are living in the household of the judicial officer. | |
| 05/09/19 |
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Confidence in the Judiciary;(Participation in Educational, Religious, Charitable, or Civic Organizations and Activities ) | JIC Advisory Opinion 2019-12. A Circuit Judge was appointed on January 2, 2019. Prior to this, the Judge served on the Board of a non-profit. The Commission determined that under Rules 1.2 and 3.7, a judge may continue to serve on the board of a non-profit, with certain restrictions. In this case, the Judge may not be the signatory for any legal documents, contracts, rental agreements, etc. The Judge should not engage in any negotiations with prospective renters/leaseholders as it might be misconstrued by members of the public that they are practicing law in violation of Rule 3.10 of the Code of Judicial Conduct. If a court case would come before the Judge involving the non-profit as a renter or leaseholder who has an active agreement signed by the Judge, the Judge should disclose the same on the record and follow Trial Court Rule 17 where applicable. The Judge cannot engage in any fundraising for the non-profit except from family members and Judges of equal or greater rank. The Judge may attend dinners or fundraisers for the organization but should refrain from any participation in press events publicizing donations to it. Beyond those admonitions, the Judge may otherwise participate as a board member of the non-profit. | |
| 01/04/19 | WVCJC Rules 2.11(A), (C); 3.11(C) |
Financial, Business or Remunerative Activities; Disqualification; Appearance of Impropriety | JIC Advisory Opinion 2019-01. A Circuit Judge was appointed to fill a vacancy in the Judicial Circuit. Prior to being appointed, the Judge was an equity member of a large law firm. Under the terms of the firm’s contractual operating agreement, as a withdrawing member, the Judge was entitled to: (i) a return of your capital account within 90 days of such withdrawal or in monthly installments of $2,000.00 as determined by the other members; and (ii) receive three (3) monthly payments equal to the pro rata equivalent of such withdrawing member’s percentage of firm profits assigned as of the effective date of such withdrawal for the next (3) months. The question is if the Judge can receive the extra-judicial payments as stated since these contractual rights pre-dated appointment as a judicial officer. The Commission reviewed Rules 3.11(C) and 2.11(A) and (C) of the Code of Judicial Conduct and based on such, determined that the Judge may receive both payments from the firm. During the pendency of the payments, the Judge should disclose the same in any case involving the firm and follow the tenets of Trial Court Rule 17. |
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| 5/2/16 | 3.15 | Financial Activities | The Commission was presented with a factual scenario whereby a judge wanted to know if Rule 3.15 of the Code of Judicial Conduct required him/her to publicly report on the Judicial Financial Disclosure statement the name of any corporation in which he/she was a shareholder along with any dividends received from the stock. It was the Commission’s opinion that “extrajudicial compensation” does not include money received from shareholder stock, from dividends, from proceeds from the sale of real estate or from social security benefits, and that therefore, such information need not be reported as income on the Judicial Financial Disclosure statement. | |
| 12/19/05 | 4D(5)(h) | Financial Activities | The JIC advised that employees paid by the Administrative Office could accept a gift of a Christmas turkey from the County Commission if the strictures of Canon 4D(5)(h) are satisfied, that is, if the donor is not a party or person whose interests are likely to come before the judge. | |
| 11/21/05 | 4 | Financial Activities | JIC advised that a judge could invest in a new out of state bank which did not include the area of the judge’s circuit in its market area. However, the JIC said that the judge would not be permitted to serve on the board of directors of the bank since that is prohibited by the provisions of Canon 4D(3). | |
| 8/19/05 | 4(D) | Financial Activities | Acceptance of accommodations and tickets, offered as part of an invitation to speak at a CLE, is a law related activity and does not violate any ethical rules. | |
| 2/23/05 | 4 | Financial Activities | A judge may rent residential property to a probation officer serving in his or her court. | |
| 3/25/05 | 4 | Financial Activities | Judge owns one-half of the stock in a corporation which has a single asset, a rental building. Judge’s son is a lawyer with the firm which wishes to rent the building. The judge would be required to recuse him or herself from cases involving the law firm. The provisions of Canon 4D(1) (a) prohibiting the judge from engaging in financial and business dealing which may reasonably be perceived to exploit the judge’s judicial position, however, would prohibit the judge from renting the building to the law firm. | |
| 5/17/04 | 4(C)(3)(b) | Financial Activities | Judge sponsors golf outing for attorneys. CASA volunteers want to use the event to raise money. Judges only involvement with the fund raising would be to supply CASA with the names of the attorneys or firms who have participated in the past or signed up this year. JIC advises such activity would not be permitted under the Canons. | |
| 4/30/04 | 4(D)(5) | Financial Activities | Judge at the request of the West Virginia Humanities Council assisted in obtaining a speaker to commemorate the 50th anniversary of Brown v. Board of Education. Humanities Council was prepared to pay an honorarium, however, the speaker requested that in lieu of the honorarium, that the Council make a donation to his law school in the Judge’s name. JIC advised that Canons did not prohibit the donation. | |
| 9/2/03 | 4 | Financial Activities | Judge’s former husband and former law partners
shared office space with another attorney prior to Judge’s divorce. The
attorney paid rent based upon her earnings. Upon the divorce
the Judge relinquished any interest in the practice of the firm and
the corporation which owns the building that houses the law practice
and the other attorney. JIC advises that due to the severance, the
Judge would not be in violation of Canon 4D and the attorney would
not be prohibited from practicing before the Judge. |
|
| 3/1/93 | 4D | Financial activities (stockholdings) | Judicial officers are not required to divest themselves of stock ownership in a corporation in which another shareholder is an attorney: however, judicial officers in such situations should recuse or disqualify themselves if the attorney-stockholder appears before them. | |
| 11/8/93 | 4D(1) | Financial activities (Weight Watchers group leader) | A judicial officer who is a member of Weight Watchers may serve as a group leader, for which service a small fee is paid. | |
| 1/07/05 | 1A, 2A | Free Speech | Citing Canons 1A and 2A and White v. Republican Party of Minnesota (2002) JIC declined to answer the specific question asked and urged that each judge look to his or her conscience and determine what speech might violate our Code by failing to preserve the integrity of the judiciary or by diminishing public confidence in its impartiality. The advisory opinion also expresses the view that the Canons need to be revisited in view of White. | |
| 06/21/19 | WVCJC Rules 4.1(A)(9),(10) and (11), Rule 4.1(B) | Free Speech | JIC Advisory Opinion 2019-15. In JIC Advisory Opinion 2018-22, issued on December 17, 2018, the Commission was asked, among other things, what a judicial candidate’s obligations were if a third-party or political action committee (PAC) makes false or misleading statements about an opponent in a campaign. The Commission held that judicial candidates must disavow attacks and request the third-party or PAC to cease and desist: (1) any false or misleading statements made about opponents: (2) any statements that do not accurately reflect the duties and role of a judge; or (3) any statements that indicate that a judge or candidate is not neutral and is biased in favor or against an individual, group, or legal issue. The purpose of this opinion 2019-15 is to provide understanding of when and where the candidate’s obligations arise. With respect to category No. (1), the Commission does not believe that a judicial candidate is obligated to disavow every third-party or PAC misrepresentation. A judicial candidate’s awareness of the third-party or PAC campaign, is not, in and of itself, enough to impose a duty to monitor and address the group’s statements. The Commission is of the view that the obligation to disavow is not triggered until the following criteria are met: (a) the statement must involve a fact and not an opinion: (b) the fact must be substantive and significant; (c) the misstatement must actually be false or a material misrepresentation; and (d) the judicial candidate has knowledge of the third-party or PAC’s factual statement and its falsity. Once the obligation to disavow is initiated, the Commission finds that the situation is resolved through the timely issuance of a press release to all area news media and a prompt letter to the third-party or PAC instructing it to immediately stop running the false statement in question. Regarding Category Nos. (2) and (3), the Commission believes the obligation arises immediately. | |
| 7/26/88 | 5B | Fund-raising | Judicial officer may not be subject of a fund-raising "roast" for charity. | |
| 05/09/19 |
|
Fund-Raising | JIC Advisory Opinion 2019-12. A Circuit Judge was appointed on January 2, 2019. Prior to this, the Judge served on the Board of a non-profit. The Commission determined that under Rules 1.2 and 3.7, a judge may continue to serve on the board of a non-profit, with certain restrictions. In this case, the Judge may not be the signatory for any legal documents, contracts, rental agreements, etc. The Judge should not engage in any negotiations with prospective renters/leaseholders as it might be misconstrued by members of the public that they are practicing law in violation of Rule 3.10 of the Code of Judicial Conduct. If a court case would come before the Judge involving the non-profit as a renter or leaseholder who has an active agreement signed by the Judge, the Judge should disclose the same on the record and follow Trial Court Rule 17 where applicable. The Judge cannot engage in any fundraising for the non-profit except from family members and Judges of equal or greater rank. The Judge may attend dinners or fundraisers for the organization but should refrain from any participation in press events publicizing donations to it. Beyond those admonitions, the Judge may otherwise participate as a board member of the non-profit. | |
| 9/16/16 | 3.1 and 3.7(A)(2) | Fund-raising | It was the Commission’s opinion that it would not be permissible for a judge to collect monetary donations at her/his office, or to coordinate the collection efforts, on behalf of a deceased lawyer who had spent all of his savings on medical bills. The Commission felt that such actions, though laudable, might create a risk that the person solicited would feel obligated to respond favorably, or would do so in order to curry favor with the judge. | |
| 4/20/12 | 5C | Fund-raising | In connection with a planned golf outing fund raising event, the Commission advised that a judicial candidate shall not personally solicit campaign contributions but may, however, establish campaign committees to solicit and accept reasonable campaign contributions. The Commission further advised that the candidate may attend the golf function if the sale of tickets and/or entry fees is handled without the candidate’s knowledge or input. The Commission further advised that a campaign committee can allow an individual sponsor for each of the 18 holes but that the candidate then would be unable to attend the outing since it would be likely that the candidate would learn the identity of the sponsors. The Commission also advised that the candidate must also comply with statutory requirements pertaining to campaign finances. | |
| 3/5/90 | 5B | Fund-raising | Judicial officer prohibited from participation in fund-raising aspects of charitable events. | |
| 5/17/11 | None Cited | Fund-raising by spouse | The Commission advised that it would not be inappropriate for the judge’s wife, who holds the positions of president and CEO of a hospice organization, to engage in fund raising activities on behalf of the organization as long as the judge remained entirely separated from such activity. | |
| 11/3/95 | 4C(3)(b) | Fund-raising | A part-time family law master should not solicit funds for the spouse's church youth group. But see 10/7/94 opinion advising that a family law master may work in concession stands run by various groups supporting school activities and may as a member of a service club stand at the entrance gate at the county fair and collect the entrance fee, as distinguished from soliciting funds. | |
| 8/22/06 | 4C(3)(b) | Fund-raising | It was the opinion of the JIC that Canon 4C(3)(b) prohibits a Judge from writing a letter
on behalf of a charitable organization when the organization is going to use the letter
for fund-raising purposes. |
|
| 4/11/96 | 4C(3)(b) | Fund-raising | A judicial officer should not participate in a charitable fund-raising activity sponsored by a local 4-H Foundation and the WVU Extension Service, with a judicial officer's picture, name, and title would be placed in one of several jars containing the picture, name, and title of other people in the community as contestants in a competition in which the winner is the person whose picture is in the jar with the most money at the end of the contest. | |
| 6/28/96 | 4C(2) and (3)(b) | Fund-raising | A judicial officer may not serve as an organization's chairperson for gift solicitations. | |
| 9/3/93 | 4D(5)(h) | Fund-raising (by judicial employees) | It is improper for judiciary employees to solicit funds from lawyers to purchase computer equipment that would be under the control of the Shorthand Reporter's Association. | |
| 10/7/94 | 4C(3)(b) | Fund-raising (civic and charitable fund-raising activities distinguished) | A family law master may work in concession stands run by various groups supporting school activities and may as a member of a service club stand at the entrance gate at a county fair and collect the entrance fee (distinguished from soliciting funds). | |
| 9/19/06 | 2 and 4 | Fund-raising; Gifts; Appearance of Impartiality | It was the opinion of the JIC that the language of Canons 2 and 4 concerning the appearance of impropriety and the appearance of impartiality would make it inappropriate for the Judge to either accept the plaque offered by the women’s center or to attend the counseling service’s fund-raising dinner. It was also the opinion of the JIC that Canon 4D(5)(h) would make it inappropriate for the Family Court personnel to receive gifts from attorneys and other persons who regularly appear in Family Court. |
|
| 4/12/93 | 4D(5)(h) | Gifts (court employees | A court reporter may not accept an offer made by a local lawyer who practices before the Court to use a beach condominium at a very reduced rate; acceptance of such an offer at full fair rental value would not be prohibited. | |
| 03/29/19 | WVCJC Rules 1.2; 3.7; 3.13 | Gifts; Integrity and Independence; Avoidance of Impropriety; Charitable Foundations | JIC Advisory Opinion 2019-10. A Judge’s partner intends to have a birthday celebration for the Judge. Guests include an attorney who regularly appears in the same Circuit. The Judge advised guests not to bring gifts. A close friend wishes to establish a charitable fund in the Judge’s name to benefit animal rescue organizations. The friend intends to solicit party attendees for donations. At issue is whether the establishment of charitable fund in the Judge’s name would violate the Code of Conduct. The Commission determined that such a fund would violate Rules 1.2, 3.7(A)(2) and (5), and is thus impermissible. However, pursuant to Rule 3.13, it is permissible for the group to make a one-time donation in the Judge’s honor, as long as neither the Judge nor the Judge’s partner solicits the funds. The guest attorney should not participate in order to avoid the appearance of attempting to gain influence over the Judge. | |
| 12/5/12 | None cited | Gifts | The Commission advised a judge who received an envelope containing an anonymous note and a $20 bill that he/she should promptly notify Court Security, inform the Sheriff of the situation and turn both the note and the $20 bill over to the Sheriff as potential evidence. | |
| 2/22/10 | 4(D)(5) | Gifts | The Commission advised that an engraved rifle valued over $150 that was given to a judge at a dinner honoring the judge’s 25 years of service, constituted an authorized "gift incident to a testimonial" and further advised that, given the value of the gift, the judge should report said gift pursuant to the "compensation" provisions of Canon 4(H). | |
| 03-10-03 | 4D(5) | Gifts | Judge received a cash door prize. JIC advises that such prizes are not considered gifts under Canon 4D(5) and, therefore, does not fall within the scope of the Code of Judicial Conduct. | |
| 6/14/95 | 4(D)(5) | Gifts (free service) | A court office may not accept complimentary basic TV cable service from a local cable company. | |
| 2/25/94 | 4C(1) | Governmental, civic or charitable activities | A judicial officer is permitted to appear before a county commission which is dealing with a plan to finance the construction of a courthouse annex in order to address the needs of the court system and to address the administration of justice. | |
| 1/24/06 | 4C(3)(b) | Governmental, civic, or charitable activities | It was the opinion of the JIC that the judge could attend the Mountain Dominion District Boy Scout Council’s Friends of Scouting dinner but could not accept their request to serve as Honoree because the event was a fund-raiser. | |
| 10/3/05 | 4C(3)(a) | Governmental, civic, or charitable activities | It was the opinion of the JIC, citing to Canon 4C(3)(a), that the judge should not accept the invitation to serve on the Board of Directors of West Virginia Advocates due to the likelihood of said organization being involved in future litigation before the courts. | |
| 4/15/05 | 4C | Governmental, civic or charitable activities | Citing Canon 4C(3) JIC advised that a judge may serve on a County Extension Service Committee. | |
| 10/7/94 | 4C(3)(a) | Governmental, civic or charitable activities | A judicial officer is precluded from serving as a member of the board of directors of legal services organizations and the Juvenile Justice Committee because these organizations and this committee are regularly involved in adversary proceedings in court. (See also commentary to this rule on the changing nature of some civic and charitable organizations.) | |
| 9/28/98 | 4C(3) | Governmental, civic, or charitable activities | A judicial officer may serve on an artistic committee of a symphony that consults with and advises the music director in the development of an artistic plan for the upcoming seasons, evaluates the programs from the previous and current seasons, discusses long-range artistic plans, and proposes artistic policies for the board to review as long as the judge's service remains within the purview of Canon 4C(3). | |
| 2/11/99 | 4C(1)(2) | Governmental, civic, or charitable activities | A judicial officer may serve on a committee that will perform a county governmental facility utilization study on whether to renovate an existing courthouse or to construct a new courthouse for the purpose of making recommendations to the county commission on this issue as long as the judicial officer's activity on the committee remains within the perimeters described in Canon 4. See also the advisory opinion dated 25 February 1994. | |
| 07/29/02 | 4C(3) | Governmental, civic, or charitable activities | Service on the Board of Directors of the Center for Multicultural Comity, established to develop a commemoration to the end of the “separate but equal” doctrine, is permitted so long as the Judge adheres to the principles set forth in Canon 4(C)(3). | |
| 05/07/02 | 4C, 5 | Governmental,
civic, or charitable activities Political Activity Fund Raising |
Family Foundation, Inc. wants to use Judge’s home for fund-raising. Foundation is a charitable organization, which focuses on children and animal issues. Judge is in no way active in the fund-raising activity. Spouse of Judge wants to use home for political fund-raising. Judge would not be present or active in the fund-raising activity. The Commission concluded, based on Canon 4C, that such charitable fund-raising would be permissible so long as Judge was not involved in soliciting funds and did not allow his name to be used for such purposes. The Commission concluded, based on Canon 5, that such political fund-raising would be permissible so long as Judge was not involved in soliciting funds and did not endorse any candidate. | |
| 6/15/95 | 1 & 2A | Integrity and independence of the judiciary and avoidance of impropriety | A magistrate may not conspire with a conservation officer whereby the conservation officer agrees to write the magistrate a ticket for littering (which was not intended to be enforced) in order for the magistrate to appear before another magistrate to assess whether that magistrate follows proper procedures in conducting initial appearances. The conspiracy in this case included an agreement that the ticket would be withdrawn ("eaten") by the conservation officer. A motion to withdraw the complaint was filed after the magistrate was released on a $200 personal recognizance bond. | |
| 02/07/18 | WVCJC Rules 1.2, 4.1(A)(1), and 4.2(A)(1) | Judicial Independence, Integrity, and Impartiality; Political/ Campaign Activity | JIC Advisory Opinion 2018-05. An incumbent Circuit Judge (“Judge”) running for re-election currently holds a leadership office in a professional association, which term is expected to expire prior to the election. The Judge requested an advisory opinion on the question of whether the Judge could continue to hold the association leadership position and run contemporaneously for Circuit Court Judge. The JIC reviewed the West Virginia Code of Judicial Conduct Rules 1.2, 4.1(A)(1), and 4.2(A)(1) in concluding that the Judge must immediately resign from the leadership position in the professional association. In reaching this conclusion, the JIC considered the principles of the referenced rules as well as the nature of the professional association, noting that it is non-profit but partisan in nature. The JIC indicated that for the Judge to align with the association through the election would be inconsistent with the obligation of the judiciary to serve with impartiality. | |
| 01/26/18 | WVCJC Rules 1.2, 2.11(A)(4), 2.12(A), 4.1(A)(3), and 4.4 | Judicial Independence, Integrity, and Impartiality | JIC Advisory Opinion 2018-02. A Circuit Judge (“Judge”) running for election requested if it would be permissible for the Judge’s campaign treasurer to concurrently serve as campaign treasurer and run for the West Virginia House of Delegates. The JIC noted the important obligation that a judge has to not engage in any conduct that would suggest to or be perceived by the public as endorsing a particular candidate for office and/or that candidate’s philosophy concerning statutes or proposed laws. Based upon this fundamental obligation, derived from the West Virginia Code of Judicial Conduct Rules 1.2, 2.11(A)(4), 2.12(A), 4.1(A)(3), and 4.4, the JIC indicated that someone running for the House of Delegates cannot concurrently serve as a campaign treasurer for a judicial candidate. | |
| 01/26/18 | WVCJC Rules 2.2, 4.5(A) | Judicial Independence, Integrity, and Impartiality | JIC Advisory Opinion 2018-03. A Magistrate inquired as to whether or not a magistrate assistant would be required to resign from the position of Magistrate Assistant in the event that the Magistrate Assistant decided to run for the elected office of Circuit Clerk. The JIC reviewed Rules 2.12 and 4.5(A) of the West Virginia Code of Judicial Conduct, including the Comments and a long line of advisory opinions, and discussed how these rules as applied to judges, senior status judges, magistrates, and mental hygiene commissions prohibit an incumbent judicial officer from holding their elected judicial offices while concurrently running for nonjudicial offices. The JIC further elaborated on a 2004 JIC Advisory Opinion which determined that a magistrate assistant would have to immediately resign from the position in order to run for a seat on a County Board of Education. The JIC additionally referenced a 1995 opinion in Philyaw v. Gatson, 195 W. Va. 474, 466 S.E.2d 133 (1995) in which the Supreme Court of Appeals held that a requirement that a magistrate assistant resign her judicial office upon becoming a candidate for Circuit Clerk was a reasonable condition of employment. Based upon this authority, the JIC opined that the magistrate assistant must immediately resign from the position in the event that she expects to run for Circuit Clerk. | |
| 8/30/16 | 1.2, 2.2, 2.3, 2.10 and 2.12 | Integrity and Independence | It was the Commission’s opinion that it would be improper for a judicial employee to publicly express, at a City Council meeting, his/her opposition to a proposed municipal ordinance providing protections to lesbian, gay, bisexual or transgender citizens. | |
| 12/15/14 | 2B, 5A(1) | Integrity and Independence | The Commission advised that a judge was not precluded from having her/his name listed as a reference on a judicial application of a candidate for a judicial vacancy, finding that such a listing does not constitute a public endorsement of a candidate for office. | |
| 2/23/12 | 3B(11) and 6A | Integrity and Independence | The Commission advised that a Family Court Judge who became aware, in connection with a divorce case, of a possible misappropriation of funds in violation of a Circuit Court order entered several years ago in a personal injury case may, pursuant to Family Court Rule 6(c)’s “for good cause shown” provision, disseminate information about the possible misappropriation to the Circuit Court. | |
| 11/17/95 | 1, 2A & B | Integrity and independence of the judiciary and avoidance of impropriety | A magistrate may not, at the telephoned request of an individual, call the residence of the individual's ex-husband to inquire about the location of the individual's children when the children had not been returned to the individual pursuant to a court visitation order. | |
| 11/17/95 | 1, 2A & B | Integrity and independence of the judiciary and avoidance of impropriety | A magistrate may not telephone a complainant who files a complaint with the JIC and, during the telephone conversation, threaten the complainant with a law suit because of the allegations set forth in the complaint. | |
| 12/18/98 | 1, 2A, 4A | Integrity and independence of the judiciary and avoidance of impropriety (attending conference sponsored by West Virignia Coalition Against Domestic Violence) | It would give the appearance of impropriety for a judicial officer to attend a conference sponsored by the West Virginia Coalition Against Domestic Violence when one of the objectives of the conference is to develop ongoing coordinated community responses regarding the enforcement in West Virginia of the "full faith and credit" provisions of the federal Violence Against Women Act and West Virginia's domestic violence laws. Judicial officers may be trained on implementing the components of the federal Violence Against Women Act and components of West Virginia's domestic violence laws regarding "full faith and credit" as long as the Supreme Court prepares or adopts the materials used in the instruction to judicial officers; provides the instructors to do the training; and assures that discussion and comments be limited to the judges within the context of the instruction given to them. Additionally, any such materials prepared or adopted by the Supreme Court must contain a statement that the Court has prepared or adopted the instructional materials. [By way of an administrative order entered 16 March 1999, the Supreme Court has overridden the JIC advisory opinion issued 18 December 1998. The Court concluded that it would not be a violation of the Code of Judicial Conduct for judicial officers to attend a conference sponsored by the West Virginia Coalition against Domestic Violence.] | |
| 5/21/98 | no Code cited | Integrity and independence of the judiciary and avoidance of impropriety | There is no legal or ethical prohibition against a judicial officer posting a copy of a statute, which was recently amended to mandate that the name of any juvenile adjudicated or convicted of a violent or felonious crime be made available to the public, in a juvenile probation office in order to provide notice to those coming into the office of the change in the law. | |
| 2/15/95 | 1, 2, 3,A & B(2) & (7) | Integrity and independence of the judiciary, avoidance of impropriety and maintenance of impartiality in the performance of judicial duties | A magistrate may not intercede with a police officer on behalf of a county official who received a speeding ticket in order to have the police officer withdraw the complaint. | |
| 2/22/95 | 1, 2A & 3A & B(7) | Integrity and independence of the judiciary, avoidance of impropriety and maintenance of impartiality in the performance of judicial duties | A mental hygiene commissioner may not interview, speak to, or receive information from prospective applicants or petitioners, witnesses, police officers, and others prior to, subsequent to, and outside of the custody/detention proceeding on a mental hygiene petition or application. Such activity places the mental hygiene commissioner in the position of advocate rather than a judicial officer. [See also § 27-5-1(c)] | |
| 3/28/95 | 1, 2A & B, 3A & B(2)(9) & (11) | Integrity and independence of the judiciary, avoidance of impropriety and maintenance of impartiality in the performance of judicial duties | A magistrate may not make public statements on the contents of a plea agreement wherein the defendant agreed to furnish information about various other criminal activities. In addition, Canon 3B(11) provides specifically that a judge "shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity." | |
| 4/20/01 | 4, 3B(9) | Instructional mock trial | A judge may serve as judge in a mock trial designed to teach firefighters how to better put together a case of arson. Attention was drawn to Cannon 3B(9) regarding making public comments about pending or impending proceedings which might reasonably be expected to affect its outcome or impair fairness. | |
| 12/13/95 | 3A, 3B(2), and W.Va. Code § 49A-4-14, State ex rel. Sullivan v. Watt, 187 W.Va. 447, 419 S.E.2d 708 (1992, and Matter of Osburn, 173 W.Va. 381, 315 S.E.2d 640 (1984) | Judicial duties (statute requires family law master to sign recommended order and notice form) | It is not appropriate for a family law master assistant to sign the family law master's name on an order or notice of recommended order. The statute requires the family law master to sign the recommended order and he or she must sign the notice form as well. | |
| 9/10/19 | WVCJC Rule 3.9 | Judicial Duties | JIC Advisory Opinion 2019-20. The Commission considered the question of whether a Circuit Judge serving as a mediator in an ad hoc mediation program falls within a judge’s official duties and therefore permissible pursuant to Rule 3.9 of the Code of Judicial Conduct, and whether some form of “enabling authorization” must first be obtained. The Commission noted that Mass Litigation Judges serving as Resolution Judges do not violate Rule 3.9. It is also possible that a multi-judge circuit may set up a Presiding Judge/Resolution Judge structure similar to the Business Court and Mass Litigation by administrative order. In such a case, it would be sanctioned by Order of the Chief Justice, and the duties would be considered official and not violate Rule 3.9. Any legislative enactment or Supreme Court Rule would also suffice. | |
| 01/24/19 | Judicial duties | JIC Advisory Opinion 2019-04. A Judge inquired about a respondent father in an abuse and neglect case who tested positive for methamphetamine. It was advised that the father did not have a job, but would start a new position in two weeks. The employment was as a correctional officer, the question is if, in light of the provisions of West Virginia Code 49-5-101 as to confidentiality, whether a Judge may disclose to the appropriate authority the respondent father’s use of methamphetamine and what action, if any can be taken to enforce the order of disclosure. Based upon Rule 3.5, the Commission is of the opinion that a Judge cannot disclose the information to the respondent father’s future employer. | ||
| 12/21/07 | WVCJC Rules 3.5 | Judicial duties | The Commission advised that a judge may confer with his/her probation officers without having to either hold a hearing or notify the parties to the case or the prosecuting attorney handling the case. The Commission also advised that when attorneys serve as the judge’s campaign committee chairman and treasurer, a judge must disclose this fact to all parties whenever the attorneys in question appear before the judge in court. | |
| 3 | Judicial duties (Appointments) | The Commission advised that a judge may appoint a lawyer, who is the son-in-law of the judge’s secretary, to cases in the judge’s court as long the judge utilizes an appointment system that is fair and impartial. | ||
| 2/21/95 | 3A & 3B | Judicial duties (statutes require findings in uncontested divorce matters) | Entry of a motion and final order as a matter of course by a judicial officer is not proper compliance with statutes in uncontested divorce actions. The statutes require a judicial officer to make a finding that: the agreement was made without fraud, duress, or other unconscionable conduct; the separation agreement may be incorporated in a judicial order enforceable in the future; and the actual contributions of the parties are not inequitable and were not inequitable at the time the agreement was executed. In addition, judicial officers must ensure that divorces are not granted contrary to law and that one party does not take advantage of the other, especially when one or both of the parties are not represented by a lawyer. (W.Va. Code §48-2-16(a) and §48-2-32(b).) [This is an addendum to the JIC's 20 January 1995 advisory opinion on disqualification when the fiance of the judicial officer's child is an attorney representing a party in an uncontested divorce case.] | |
| 5/17/04 | None | Judicial Watch | Magistrate complaint regarding a letter received from Judicial Watch was not within the purview of the JIC to address. | |
| 11/2/15 | None Cited | Legal, not ethical, issue | The Commission stated that a judge’s question as to whether she/he could properly open confidential Abuse and Neglect case files to examine an attorney’s billing practices does not present an ethical inquiry but rather, presents a legal issue which should be resolved by the judge. | |
| 11/2/15 | None Cited | Legal, not ethical, issue | The Commission stated that a candidate for magistrate’s question of whether her/his wife, who is a magistrate court clerk, would have to resign if she/he should be elected magistrate presents not an ethical inquiry but, rather a legal one that could be handled by contacting the Administrative Office of the Supreme Court. | |
| 10/01/02 | 4C(2) | Legislative Activity of Family Court Association | The Family Court Association, a voluntary association of family court judges, may collect voluntary donations from its members to hire a lobbyist for the 2003 Legislative session. | |
| 03/26/19 | No WVCJC Rule Cited | Legislative Activity; Political Activity | JIC Advisory Opinion 2019-06. A member of the House of Delegates whose term ends in 2020 was contemplating running for Magistrate. If the position was won, the seat would not be taken until January 2021. The question is if there would be a requirement to resign as a House Delegate. Since there is no rule or provision which requires one to resign their legislative seat, the Commission is of the opinion that if elected, the delegate may retain the legislative seat until such time as the Judge take the oath of office for Magistrate. | |
| 2B | Letters (character letter to court in another state) | It is improper for a judicial officer to submit a character letter on behalf of a juvenile to those involved in a juvenile matter pending in another state (the recipients of the letter would have included the district attorney, counselor, probation officer and possibly the judge). Unless properly summoned to testify, a judicial officer may not testify voluntarily as a character witness. | ||
| 3/26/12 | 2B | Letter of recommendation | The Commission advised that a Judge may submit a letter of recommendation for an applicant for a judicial vacancy but only if it is not considered a public endorsement of the individual but is used solely by the appointing authority and can remain confidential. | |
| 2/23/12 | 2B | Letter of recommendation | The Commission advised that a Judge may write a letter of recommendation on behalf of his/her law clerk, since the Judge has personal knowledge of the clerk’s worth ethic and habits. The Commission stated that this Opinion overrules, in part, a May 3, 1990 Advisory Opinion which stated that if letterhead was used, then the words “personal and confidential” had to appear on the face of the document. | |
| 11/13/89 & 11/5/90 | 2 | Letters (character letter to Federal judge) | Improper for judicial officer to send a letter to a presiding Federal judge regarding the character of an individual. | |
| 9/4/97 | 2B | Letters (character letter to Supreme Court for judicial officer facing disciplinary proceedings) | Unless properly summoned to testify as a character witness, a judicial officer may not submit a character reference to the Supreme Court on behalf of another judicial officer who is the subject of a disciplinary proceeding before the Court. This type of letter is akin to character testimony, which would be prohibited if given without a subpoena. | |
| 12/28/99 | 2B | Letters (judicial officer as reference) | A judicial officer may provide a character reference for a graduating law student if the information provided about the student is based upon the judicial officer’s personal knowledge. | |
| 7/26/88 and 9/2/88 | [2] | Letters (letterhead (official stationery in campaign) | Improper for judicial officer to use official stationery in campaign; use of letterhead with name only and courthouse address is permissible. | |
| 5/3/90 | [2B] | Letters (recommendations) | Judicial officer may write a recommendation to law school or bar association if has personal knowledge of the applicant; may write recommendation for employment for a former employee; recommendation must be on unofficial letterhead or bear the words "personal and unofficial." | |
| 2/7/97 | 1A & 2A | Letters (to jurors) | A judicial officer may send letters to jurors thanking them for their service. Any such letters must be sent at the end of the term during which the jurors served. They should not mention any trial, verdicts, or issues involved; and they must not solicit comments with regard to the jury's decision or deliberation. Any such letter to a juror must remain within the constraints of Canons 1 and 2 and must not impinge upon the integrity or independence of the judiciary or give the appearance of impropriety in its wording. | |
| 3/10/97 | 4A & C(1) | Letters (to legislators and legislative testimony) | A judicial officer may send letters to members of the legislature and appear before legislative committees to express his or her opinion on legislative matters if the letters or appearances are within the guidelines of the canon. However, the matters discussed with legislators should not include issues pending before the judicial officer, and the judicial officer should be clear that he or she is writing or appearing for himself or herself, not as a representative of all judicial officers. In addition, the judicial officer should use his or her personal stationery and not use official judicial stationery when writing legislators. | |
| 12/28/99 | 2 | Letters (soliciting support) | A judicial officer is prohibited from sending a letter to the lawyers in his or her circuit supporting the implementation of the local Pro Bono Domestic Violence Project and requesting their assistance in getting the program off the ground. | |
| 9/2/94 | [No canon cited] | License plates | It is not a per se violation of the Code of Judicial Conduct for a judicial officer married to a legislator to drive a vehicle displaying either a legislative license plate or a low number license plate assigned by the Governor. | |
| 6/30/89 | [5] | Media (educational videotape interview) | Not improper for judicial officer to do an interview or film to encourage students to complete education, provided judicial officer receives no remuneration and has no business affiliation with producer. | |
| 9/10/19 | WVCJC Rule 2.10 | Media | JIC Advisory Opinion 2019-21. A Judge was asked to appear on a nationally broadcast podcast hosted by Nancy Grace, a well-known legal commentator and journalist. The discussion would be regarding “cold cases” in other states. Based upon Rule 2.10, the Commission found that it would be improper for the Judge to discuss cold cases from other states since those matters could one day come before a court. | |
| 06/21/19 | WVCJC Rules 4.1(A)(9),(10) and (11), Rule 4.1(B) | Media | JIC Advisory Opinion 2019-15. In JIC Advisory Opinion 2018-22, issued on December 17, 2018, the Commission was asked, among other things, what a judicial candidate’s obligations were if a third-party or political action committee (PAC) makes false or misleading statements about an opponent in a campaign. The Commission held that judicial candidates must disavow attacks and request the third-party or PAC to cease and desist: (1) any false or misleading statements made about opponents: (2) any statements that do not accurately reflect the duties and role of a judge; or (3) any statements that indicate that a judge or candidate is not neutral and is biased in favor or against an individual, group, or legal issue. The purpose of this opinion 2019-15 is to provide understanding of when and where the candidate’s obligations arise. With respect to category No. (1), the Commission does not believe that a judicial candidate is obligated to disavow every third-party or PAC misrepresentation. A judicial candidate’s awareness of the third-party or PAC campaign, is not, in and of itself, enough to impose a duty to monitor and address the group’s statements. The Commission is of the view that the obligation to disavow is not triggered until the following criteria are met: (a) the statement must involve a fact and not an opinion: (b) the fact must be substantive and significant; (c) the misstatement must actually be false or a material misrepresentation; and (d) the judicial candidate has knowledge of the third-party or PAC’s factual statement and its falsity. Once the obligation to disavow is initiated, the Commission finds that the situation is resolved through the timely issuance of a press release to all area news media and a prompt letter to the third-party or PAC instructing it to immediately stop running the false statement in question. Regarding Category Nos. (2) and (3), the Commission believes the obligation arises immediately. | |
| 12/22/93 | 2 | Media (non-political radio messages) | To avoid impropriety and the appearance of impropriety, a judicial officer may not buy air time from a local radio station to send season's greetings from the judicial officer and his or her employees. | |
| 11/25/96 | No CANON cited | Media (participation by a judicial officer in a media discussion with a defendant in a criminal case in which the magistrate was a victim) | The Commission did not identify a specific canon of judicial conduct which might be violated by the judicial officer. However, the Commission's unanimous opinion was that given the potential ramifications of the action (a media appearance with the defendant), the judicial officer should seriously consider not participating. | |
| 8/19/05 | Membership | JIC referred the question of membership in a task force by a person who works with the circuit court to the Chief Circuit Judge for resolution. | ||
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Membership | JIC Advisory Opinion 2019-12. A Circuit Judge was appointed on January 2, 2019. Prior to this, the Judge served on the Board of a non-profit. The Commission determined that under Rules 1.2 and 3.7, a judge may continue to serve on the board of a non-profit, with certain restrictions. In this case, the Judge may not be the signatory for any legal documents, contracts, rental agreements, etc. The Judge should not engage in any negotiations with prospective renters/leaseholders as it might be misconstrued by members of the public that they are practicing law in violation of Rule 3.10 of the Code of Judicial Conduct. If a court case would come before the Judge involving the non-profit as a renter or leaseholder who has an active agreement signed by the Judge, the Judge should disclose the same on the record and follow Trial Court Rule 17 where applicable. The Judge cannot engage in any fundraising for the non-profit except from family members and Judges of equal or greater rank. The Judge may attend dinners or fundraisers for the organization but should refrain from any participation in press events publicizing donations to it. Beyond those admonitions, the Judge may otherwise participate as a board member of the non-profit. | |
| 8/19/05 | 4A & 4C | Membership | Citing Canons 4A and 4C, JIC advised that, because the Association of Trial Lawyers of America generally represents one side of cases in litigation, a designation as a judicial fellow in the Association should not be accepted. A prior advisory opinion with an analogous request was issued on March 10, 2000. | |
| 10/3/03 | 4C | Membership | Because the West Virginia Advocates is designed to advocate for and to protect the legal rights of West Virginians with disabilities, it is assumed that the Advocates will be involved in litigation in various courts. Because of the potential conflicts, JIC opined that serving on the Board of Directors of the Advocates is not recommended. | |
| 3/29/91 | 5C(1) & 4 | Money for the performance of a marriage | Improper to accept money as gratuity from couple for whom judicial officer performs a marriage ceremony. [Such gift does not fall with the exceptions found in 5C(4)(a)-(c)]. | |
| 3/29/91 | 5C(1) & (4) | Money or equipment for office use (as gift) | Improper for judicial officer to accept gifts of money or equipment from a charitable, fraternal, or other nonprofit organization to provide otherwise unavailable office equipment. [The advisory opinion does not note the likelihood here for the appearance of impropriety if a judicial officer were allowed to accept such a gift; and there's no guarantee that representatives from the donating organization would not appear before the judicial officer. Canon 2B.] | |
| 3/29/91 | 5 | Money or equipment for office use (paid from judicial officer's own resources) | Permissible for a judicial officer to use money from the judicial officer's personal estate to purchase equipment or to use the judicial officer's own equipment for the judicial office. | |
| 2/25/94 | [No canon cited] | Money or equipment for office use (soliciting equipment for office use) | No provision of the Code of Judicial Conduct is violated when a local Bar Association, at the request of the circuit judges, purchases plain paper facsimile machines for the court. However, it is suggested that the names of contributors to fund-raising efforts not be published or made available to any of the circuit judges. [Cf. 3/29/91 advisory opinion involving Canons 5C(1) & (4) of the former Code of Judicial Ethics relating to money or equipment as a gift for office use.] | |
| 9/12/05 | 4D | Ownership of Non-Profit Stock | A circuit judge and others, including a lawyer who practices before the judge, are members of a nonprofit corporation that owns a fishing club located on a trout stream in a rural county. The club does not generate royalties or income, and a yearly maintenance charge is assessed to members. The judge and lawyer do not anticipate using the property at the same time. Because the relationship falls outside the language in Canon 4D, JIC opined that the judge is not barred from participating in the club, and the lawyer and members of his firm are not precluded from appearing before the judge. | |
| 06/08/00 | 05 | Political activity | A magistrate may not telephone voters on behalf of a magistrate assistant who is a candidate for the office of magistrate. | |
| 08/2/19 | WVCJC Rule 4.1(A)(9) |
Political activity | JIC Advisory Opinion 2019-18. During the summer before a student’s third year of law school, the student received a certification from the Supreme Court of Appeals of West Virginia stating that the student complied with all of the requirements of Rule 10, et. seq., of the Rules for Admission to practice Law, Relating to Legal Assistance by Law Students to Persons Unable to Pay for Services, and that their supervising attorney was a Prosecuting Attorney. The student worked at the Prosecutor’s Office and graduated law school in May of 2012. They did not receive another Rule 10 certification after graduating from law school. The student did not take the July 2012 bar examination, the first time the student sat was February 2013. While awaiting the results of the examination, they were hired as a full-time “assistant prosecutor.” The Prosecutor’s Office and the individual were mistaken believing that the individual could practice pursuant to Rule 10 while awaiting exam results. However, the individual did not comply with the Rule 10.2(a) requiring that the bar examination be taken immediately after graduation. Shortly after being employed as an “assistant prosecutor” they were notified that they did not pass the bar examination and the prosecutor’s office had to terminate employment. In 2019 this individual was appointed to serve as Magistrate and they have decided to run for re-election in 2020. In their advertisement the slogan “The Right Experience, The Right Choice” is used. Directly underneath the slogan, the candidate’s experience is listed, including working as an “Assistant Prosecutor.” Rule 4.1.(A)(9) states that “a judge or judicial candidate shall not knowingly, or with reckless disregard for the truth, make any false or misleading statement.” Based upon this Rule, the Commission determined that the Magistrate cannot use the term “assistant prosecutor” in campaign advertisements since they never served in that capacity. The Commission found it would be a material misrepresentation and leave the public with the mistaken impression that the magistrate has a license to practice law in West Virginia. Therefore, they may not state that they served as an assistant prosecutor but may say that they interned or clerked at the Prosecutor’s Office. | |
| 06/21/19 | WVCJC Rules 4.1(A)(9),(10) and (11), Rule 4.1(B) | Political Activity | JIC Advisory Opinion 2019-15. In JIC Advisory Opinion 2018-22, issued on December 17, 2018, the Commission was asked, among other things, what a judicial candidate’s obligations were if a third-party or political action committee (PAC) makes false or misleading statements about an opponent in a campaign. The Commission held that judicial candidates must disavow attacks and request the third-party or PAC to cease and desist: (1) any false or misleading statements made about opponents: (2) any statements that do not accurately reflect the duties and role of a judge; or (3) any statements that indicate that a judge or candidate is not neutral and is biased in favor or against an individual, group, or legal issue. The purpose of this opinion 2019-15 is to provide understanding of when and where the candidate’s obligations arise. With respect to category No. (1), the Commission does not believe that a judicial candidate is obligated to disavow every third-party or PAC misrepresentation. A judicial candidate’s awareness of the third-party or PAC campaign, is not, in and of itself, enough to impose a duty to monitor and address the group’s statements. The Commission is of the view that the obligation to disavow is not triggered until the following criteria are met: (a) the statement must involve a fact and not an opinion: (b) the fact must be substantive and significant; (c) the misstatement must actually be false or a material misrepresentation; and (d) the judicial candidate has knowledge of the third-party or PAC’s factual statement and its falsity. Once the obligation to disavow is initiated, the Commission finds that the situation is resolved through the timely issuance of a press release to all area news media and a prompt letter to the third-party or PAC instructing it to immediately stop running the false statement in question. Regarding Category Nos. (2) and (3), the Commission believes the obligation arises immediately. | |
| 06/21/19 | WVCJC Rules 4.1(A)(9),(10) and (11), Rule 4.1(B) | Political and Campaign Activities of Judges and Judicial Candidates in General | JIC Advisory Opinion 2019-15. In JIC Advisory Opinion 2018-22, issued on December 17, 2018, the Commission was asked, among other things, what a judicial candidate’s obligations were if a third-party or political action committee (PAC) makes false or misleading statements about an opponent in a campaign. The Commission held that judicial candidates must disavow attacks and request the third-party or PAC to cease and desist: (1) any false or misleading statements made about opponents: (2) any statements that do not accurately reflect the duties and role of a judge; or (3) any statements that indicate that a judge or candidate is not neutral and is biased in favor or against an individual, group, or legal issue. The purpose of this opinion 2019-15 is to provide understanding of when and where the candidate’s obligations arise. With respect to category No. (1), the Commission does not believe that a judicial candidate is obligated to disavow every third-party or PAC misrepresentation. A judicial candidate’s awareness of the third-party or PAC campaign, is not, in and of itself, enough to impose a duty to monitor and address the group’s statements. The Commission is of the view that the obligation to disavow is not triggered until the following criteria are met: (a) the statement must involve a fact and not an opinion: (b) the fact must be substantive and significant; (c) the misstatement must actually be false or a material misrepresentation; and (d) the judicial candidate has knowledge of the third-party or PAC’s factual statement and its falsity. Once the obligation to disavow is initiated, the Commission finds that the situation is resolved through the timely issuance of a press release to all area news media and a prompt letter to the third-party or PAC instructing it to immediately stop running the false statement in question. Regarding Category Nos. (2) and (3), the Commission believes the obligation arises immediately. | |
| 06/21/19 | WVCJC Rule 2.13(e) | Political Activity; Third Party/Political Action Committees; disavowing false claims of | JIC Advisory Opinion 2019-05. Provides understanding and clarification as to when a judge/judicial candidate should disavow false or materially misleading Third Party/PAC political advertisements. | |
| 01/31/19 | WVCJC Rule 4.1 | Political Activity; Appearance of Impropriety | JIC Advisory Opinion 2019-05. A Judge had been asked to help with an upcoming municipal election as a poll worker. Rule 4.1 of the Code of Judicial Conduct notes that despite a few restrictions, the family members of judges and judicial candidates are generally free to engage in their own political activity. The Commission is of the opinion that the Judge’s spouse may work as a poll worker. | |
| 12/14/18 | WVCJC Rule 4.2(B)(A) Rule 4.1(A)(9),(10) & (11) Rule 4.1(B) |
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| 08/22/18 | W. Va. Constitution Articles VIII § 7 and VI § 13; WVCJC Rules 4.5(A) and 4.5(B) and Comments | Political Activity; Judicial Candidacy | JIC Advisory Opinion 2018-20. A candidate for the Supreme Court of Appeals of West Virginia (“Candidate”) requested an advisory opinion on whether or not the Candidate could keep the then-current legislative position while running as a candidate for the Supreme Court of Appeals of West Virginia. The JIC looked to the West Virginia Constitution Article VIII § 7 which establishes that judges that wish to seek non-judicial offices must resign from the judgeship in order to do so. The JIC then turned to Rules 4.5(A) and 4.5(B) of the Code of Judicial Conduct concerning when a judge must resign to seek election or appointment to a nonjudicial office, pointing out that the judge would have to resign upon becoming a candidate for a nonjudicial elective office but would not be required to resign upon becoming a candidate for appointive office, provided that the judge complies with the other provisions of the Code of Judicial Conduct. Consistent with Comment [1], the JIC noted that the distinction rests with the nature of the elective campaign for nonjudicial office, wherein the campaign relies on pledges, promises, or commitments related to positions that the candidate might take if elected. The JIC also discussed the “resign to run” rule which serves to ensure that a judge cannot use the judicial office to promote his or her candidacy. The JIC noted that West Virginia does not have any rules that apply to nonjudicial candidates, such as members of a legislative body who want to run for judge. The JIC did review West Virginia Constitution Article VI § 13 which places a restriction on dual office holding where the offices are incompatible. The JIC concluded that the provisions of the West Virginia Constitution do not address the specific question raised by the Candidate, the JIC declined to answer the Candidate’s question, leaving it to future legislative action. Note: The Candidate resigned from the legislative post prior to the JIC issuing this Advisory Opinion 2018-20. | |
| 08/21/18 | WVCJC Canon 4 | Political Activity | JIC Advisory Opinion 2018-17. A potential appointment candidate for a vacancy on the Supreme Court of Appeals of West Virginia who is also considering running for the position in the upcoming general election (“Potential Justice Candidate”), has requested a JIC advisory opinion. The Potential Justice Candidate was a member of the House of Delegates during the preliminary impeachment hearings and participated in the impeachment vote. Further, the Potential Justice Candidate requested to be excused from the vote, but was required to cast a ballot. The Potential Justice Candidate requests to know if participation in the impeachment vote precludes the Potential Justice Candidate from applying/running for any vacancy on the Supreme Court of Appeals of West Virginia (“Court”). The JIC reviewed Canon 4 of the Code of Judicial Conduct and found no impediment for the Potential Justice Candidate to apply/run for a vacancy on the Court as the impeachment proceedings are now in the breast of the State Senate. | |
| 08/02/18 | WVCJC Rule 4.1 and Comments | Political Activity; Campaign Activity | JIC Advisory Opinion 2018-16. A Circuit Judge “(Judge”) described a situation involving the Judge’s two-year law clerk incumbent. The law clerk expressed to the Judge intentions of running for a partisan nonjudicial office in the future. The Judge asked the JIC if the law clerk would be required to immediately resign the position of law clerk. The JIC reviewed Rule 4.5(A) of the Code of Judicial Conduct which provides that upon becoming a candidate for a nonjudicial elective office, a judge shall resign from judicial office, unless permitted by law to continue to hold judicial office. The JIC also reviewed Comment [1] to the Rule which described that the process of making pledges–and-promises, although generally acceptable and appropriate in nonjudicial campaigns, would be inconsistent with the role of a judge. The JIC reviewed Comment [2], as well, and discussed applicability of the “resign to run” rule, which was extended to judicial employees by the Supreme Court of Appeals of West Virginia (“Court”) in Philyaw v. Gatson, 195 W. Va. 474, 466 S.E.2d 133 (1995) (“Philyaw”) which applied the “resign to run” rule to a magistrate assistant considering a candidacy on the local school board. The JIC noted that Philyaw was reinforced in a JIC Advisory Opinion on March 15, 2004. The JIC determined that the Judge’s law clerk would be required to immediately resign as soon as the law clerk publicly discussed the decision to run for nonjudicial office. | |
| 06/12/18 | WVCJC Rule 4.1 and Comments | Political Activity; Campaign Activities | JIC Advisory Opinion 2018-13. A candidate for a circuit judge position (“Judicial Candidate”) in a highly contested upcoming election would like to tell a version of a life story through campaign ads on television, radio, and social media. Part of the story the Judicial Candidate would like to tell is about a brother that was murdered in high school and how this event has inspired the Judicial Candidate in career choices. The defendant in that murder case (“Defendant”) is presently serving life with mercy, and has another habeas petition pending. The Judicial Candidate requests an advisory opinion addressing the propriety of mentioning the brother’s murder and related facts. The JIC reviewed the West Virginia Code of Judicial Conduct Rule 4.1, which states that a judicial candidate cannot make any campaign statements that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court. The JIC discussed several Comments to Rule 4.1, concluding that because the Defendant is a repeat habeas petitioner in the county in which the Judicial Candidate is running for a judicial vacancy, it would be improper for the Judicial Candidate to discuss the case in any great detail. The JIC does believe that it would be appropriate for the Judicial Candidate to generically mention the brother’s murder and the impact that event has had on the Judicial Candidate’s life, namely the decision to be a lawyer and to run for judge. | |
| 04/25/18 | WVCJC (generally) | Political Activity; Campaign Funds | JIC Advisory Opinion 2018-10. An individual/prosecutor requested a JIC advisory opinion concerning the use of “left over” campaign funds from a successful former run for prosecutor. The individual/ prosecutor is contemplating running for circuit judge due to a recent vacancy, and wants to know if it would be proper to use the left over campaign funds from the prosecutor campaign/election for the potential current circuit judge campaign. The individual/prosecutor indicated that the West Virginia Secretary of State’s Office (“WVSOS”) previously, at the individual/prosecutor’s request, indicated that it would be impermissible under West Virginia law to use these funds in a subsequent election for judge. The JIC expressed that the individual/prosecutor should follow the advice provided by the WVSOS as there are no other limits contained in the Code of Judicial Conduct for such use. | |
| 04/25/18 | WVCJC (overview); West Virginia Code § 3-3-2a | Political Activity; Campaign Activity, Other | JIC Advisory Opinion 2018-09. A group of Family Court Judges requested an advisory opinion on the conduct of the landlord of the family court rental space. Specifically, the Family Court Judges described that the landlord is a candidate for the U.S. House of Representatives and actively displays campaign materials in areas of the commercial rental building in which the family court leases space, such as the lobby. Given that the leased space is used for official court purposes, the Family Court Judges requested clarification on whether the landlord’s behavior in posting campaign materials on these premises is in violation of the West Virginia Code of Judicial Conduct (“WVCJC”) given that West Virginia Code § 3-3-2a prohibits campaigning on Courthouse property or annex facilities during the period of “early voting”. The JIC concluded that the described conduct does not violate the WVCJC since the activity is not occurring on the floors used by the Family Court. The JIC further suggested that questions about the appropriateness of campaign signs should be addressed by the Secretary of State. | |
| 02/07/17 | WVCJC 4.1(A)(3) | Political Activity | JIC Advisory Opinion 2017-05. A judge’s daughter owns a majority interest in a real estate business, and the judge’s spouse owns a minority interest. The judge does not have any ownership interest in this venture. The judge’s daughter is planning to place a political banner in the window of the business office. The banner supports the son-in-law’s political campaign for City Council. The judge requests the Commission to advise if placement of the political banner in the business office window violates the Code of Judicial Conduct. Based upon the ownership interests of the business, and notably that the judge has no interests whatsoever in the business, the Commission concluded that the judge’s daughter would be able to place the banner in the office window with no disqualification or other repercussions to the judge. | |
| 4/18/16 | 4.1(A)(3) | Political Activity | It was the Commission’s opinion that a candidate for a judicial office cannot campaign with the wife of a candidate for the county commission because the public may interpret the situation as constituting an endorsement by the judicial candidate of the person running for county commission position. | |
| 4/18/16 | 4.4 | Political Activity | It was the Commission’s opinion that a judicial candidate’s campaign committee may solicit contributions and give out door prizes at a fundraiser, provided that the donations fall with the legal range for contributions and that each door prize/donation is properly accounted for and reported. | |
| 4/18/16 | 4.5(A) | Political Activity | A factual scenario was presented to the Commission in which a lawyer filed to run for the House of Delegates prior to applying for, and subsequently being chosen to fill, an open law clerk position with a Circuit Judge. After being hired by the Circuit Judge, the lawyer notified the Secretary of State’s Office and attempted to have his name removed from the ballot. He was told it could not be done. The question presented was whether the lawyer must resign his position as law clerk since, technically, he still running for political office. It was the Commission’s opinion that in light of the sequence of events, and considering the actions taken by the lawyer to try to solve the problem, the lawyer could continue to work as a law clerk as long as he: (1) no longer campaigned for office; (2) took down all campaign signs; (3) closed any election committee he had set up; (4) did not participate in any campaign interviews and (5) if asked, publicly disavowed his candidacy for office. | |
| 3/08/16 | 4 | Political Activity | It was the Commission’s opinion that it would not be appropriate for a probation officer to make a contribution to a judge’s campaign committee, in light of the direct supervision that a judge has over probation officers, including the fact that probation officers serve at the will and pleasure of circuit judges. The Commission also stated that Rule 2.12(A) provides that a judge shall require those subject to the judge’s direction and control to act in a manner consistent with the judge’s obligation under the Code of Judicial Conduct and that Rule 4.1(A)(5) provides that a judge shall not make a contribution to a candidate for public office. | |
| 3/01/16 | 2.12 & 4 | Political Activity | It was the Commission’s opinion that a member of the Judge’s staff is not permitted to have a bumper sticker on her/his car that reads, “Hillary for prison” in light of the Code of Judicial Conduct provisions that (a) prohibit a judge from publicly opposing a candidate for public office and (b) require court staff subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations. | |
| 02/29/16 | 4 | Political Activity | It was the Commission’s opinion that a judge running for re-election could use his staff in campaign advertisements as long as their participation is voluntary and as long as their participation in the advertisement occurs after normal work hours. The Commission also stated that the advertisement cannot represent that the candidate and his staff are running as a “team” since it must be clear that only the candidate is running for the office. | |
| 02/29/16 | 4 | Political Activity | It was the Commission’s opinion that a candidate for magistrate could not campaign door-to-door with a candidate for circuit clerk since such activity would violate the prohibition against a candidate publicly endorsing a candidate for public office. | |
| 02/29/16 | 4 | Political Activity | It was the Commission’s opinion that a candidate for circuit judge, who chose not to have a campaign committee or treasurer, could not allow a group of friends to pay for a “meet and greet” event without having a campaign committee in place. The Commission stated that such an event would be reportable by the candidate as a campaign contribution/expenditure and that, therefore, it would be in violation of Rule 4.1(A)(6) for the candidate to personally accept it without a campaign committee. | |
| 02/17/16 | 4 | Political Activity | It was the Commission’s opinion that a candidate for circuit judge’s campaign committee could hold a dinner/dance fundraiser, and the candidate could attend the fundraiser and “meet and greet” individuals as long as the candidate is not involved in soliciting money and as long as the candidate does not attempt to learn which people actually made contributions to the candidate’s campaign. | |
| 02/12/16 | None Cited | Political Activity | The Commission stated that it could not provide an opinion to a candidate for magistrate about whether it would be appropriate to post articles or photographs on a Facebook page in light of the fact that the candidate failed to comply with the Commission’s request for clarification about what types of articles and photographs the candidate intended to publish. | |
| 02/08/16 | 4 | Political Activity | It was the Commission’s opinion that a candidate for circuit judge could have a preacher serve as the candidate’s spokesperson in a television campaign advertisement as long as the content of the advertisement was in compliance with Rule 4.1(A)(9)’s requirement that a judicial candidate “shall not knowingly, or with reckless disregard for the truth, make any false or misleading statement.” The Commission stated that the candidate is responsible for ensuring that the content of the advertisement is in compliance with all of the relevant provisions of Canon 4. | |
| 02/02/16 | 3 & 4 | Political Activity | It was the Commission’s opinion that a judicial candidate would not be able to place videos on her/his website in which the judge answers questions about family law issues since that would constitute the impermissible practice of law. The Commission also stated that it would also be impermissible for a judicial candidate to use her/his Facebook page for the same type of activity. | |
| 12/23/15 | 4.2 | Political Activity | It was the Commission’s opinion that a candidate for circuit judge could not have a city councilwoman serve as a “meet and greet” host for a social event for the candidate even though the councilwoman is not currently running for office, in light of the Code of Judicial Conduct provisions that prohibit a judge or judicial candidate from publicly endorsing a candidate for any public office. | |
| 12/21/15 | 4.2 | Political Activity | It was the Commission’s opinion that a judge currently running for re-election without a campaign committee could not use campaign signs from a previous election that contained the language, “Paid for by Committee to Elect...” unless the “Paid for by Committee” language was covered up or removed. | |
| 11/19/15 | 4.1(A)(3)) | Political Activity | A judge asked the Commission if it would be permissible under the provisions of the Code of Judicial Conduct for the judge’s wife, who is a Certified Public Accountant, to accept a position in which she would assist the campaign treasurer of a gubernatorial candidate in preparing financial filings and in record keeping. The Commission referenced Rule 4.1(A)(3)’s prohibition against a judge publicly endorsing or opposing any candidate for public office and then referenced language in Comment 5 thereto that a judge must not become involved in or publicly associated with a family member’s political activity and should urge members of their families to take reasonable steps to avoid any implication that they endorse any family member’s political activity. The Commission stated that in light of the relevant Code of Judicial Conduct provisions, whether or not a violation would occur would depend on what the judge and his wife decided to do. In light of this situation, the Commission stated that it was unable to provide an advisory opinion as to whether it would be permissible for the judge’s wife to accept the position. | |
| 11/2/15 | None Cited | Political Activity | The JIC declined to answer whether a Magistrate Court Clerk would have to resign her position if her husband was elected magistrate because it is a legal inquiry instead of an ethical one. | |
| 10/27/15 | 5A(1)(a), 5A(3)(b), 3C(5) | Political Activity | A magistrate assistant cannot concurrently serve as a member of a county political executive committee. | |
| 10/30/14 | 5 | Political Activity | The Commission advised that a judge could accept a request from the West Virginia Public Broadcasting System to make a statement about the first female to serve as a United States Senator for the state of West Virginia since the statement would not involve the type of political activity contemplated by Canon 5 but would merely address the potential impact of the first female United States Senator in West Virginia history. | |
| 5/6/14 | 5 | Political Activity | The Commission advised that a judge who has campaign signs or paraphernalia on her/his private vehicle could park her/his vehicle at a public parking spot as long as the parking spot was located more than 300 feet away from the courthouse/county premises, referencing the language of WV Code, Section 3-3-9 that no person may do any electioneering on election day within three hundred feet of the outside entrance to the building housing a polling place. | |
| 4/7/14 | 5 & 2A) | Political activity; Appearance of impropriety | The Commission advised that even though a Mental Hygiene Commissioner, as a continuing part-time judge, is not required to comply with the political activity restrictions of Canon 5A(1) and 5D, he/she nevertheless should not post political signs in front of his law office since the posting of such political signs may create an appearance of impropriety in violation of Canon 2A. | |
| 2/18/14 | 5C(2) | Political Activity | The Commission advised that a candidate for judicial election may have his or her campaign committee solicit publicly stated support from various police organizations but that the candidate should have absolutely no involvement in the committee’s attempts to solicit such endorsements or financial support. | |
| 2/4/14 | 5C | Political Activity | The Commission advised that once a person who is a finalist for an appointment to fill a Circuit Court Judge vacancy declares his or her candidacy to run for the open position, that person is then permitted to campaign and to establish a committee which can solicit funding and support for the election. | |
| 10/25/12 | 5 | Political Activity | The Commission advised that a judge who was invited by a local school to take part in a debate could do since Canon 5C(1)(b)(I) allows a candidate for judicial office to “speak to gatherings on his or her own behalf.” However, the Commission further advised that during the debate, the judge must be cognizant of the types of comments that cannot be made, namely, those described by the provisions of Canon 5A(3)(d). | |
| 3/7/12 | 5 | Political Activity | The Commission advised a Judge that his/her law clerk can make a contribution to the political campaign of an out-of-state Judge by whom the law clerk was previously employed. | |
| 2/23/12 | 5C(2) | Political Activity | The Commission advised a candidate for a position on the Supreme Court of Appeals that he/she may use a PayPal button on his/her campaign committee’s official web page to collect campaign contributions. | |
| 2/23/12 | 4C(3)and 5 | Political Activity and extra-judicial activities | The Commission advised a Magistrate that a campaign committee can donate money to a civic or charitable organization and that if the Magistrate does not have a campaign committee, then he/she may donate money as an individual, but not as a candidate. The Commission also advised that a campaign committee can donate a basket to the civic or charitable organization to be used as a door prize and that the basket may contain campaign material but stated that the basket may not be raffled off because to do so would constitute the solicitation of funds. The Commission further advised that the Magistrate may not sell raffle tickets or food, collect money for a 50-50 drawing or call numbers but stated that the Magistrate may purchase a ticket and participate in a 50-50 drawing or bid on a silent auction. | |
| 2/23/12 | 6A and 5A(1) and 4C(3) | Political Activity | The Commission advised a candidate for election as Magistrate that she must resign from a branch of the West Virginia Federation of Democratic Women and should also resign her position as treasurer of, and her membership in, the Court Appointed Special Advocate (CASA) organization, since, as treasurer she would necessarily be involved in fundraising activities. The Commission further advised that she should also resign from the position of membership chairman of the local county Sportsmen’s Club, since this position involves the solicitation of funds. The Commission advised that she could serve with the Greater Federation of Women’s Clubs and could also remain a member of the Volunteer Income Tax Assistance program. | |
| 2/23/12 | 6A and 5A(2) | Political Activity | The Commission advised a Mental Hygiene Commissioner that he/she must resign this position immediately upon becoming a candidate for the House of Delegates, a non-judicial office. The Commission also advised the he/she could not be appointed Mental Hygiene Commissioner for the limited purpose of serving as the substitute Drug Court Judge during the pendency of the election. | |
| 2/21/12 | 5A(3)(a) and 3C(2) | Political Activity | The Commission advised a candidate for Magistrate whose husband is a probation officer that, as set out in a 2-25-94 Advisory Opinion, her husband could attend campaign rallies or other social functions but could not provide volunteer manual labor for the campaign and could not engage in any fundraising activities. In addition, the probation officer husband could not drive a vehicle normally driven by his wife when the vehicle had campaign signs or posters on it. Neither would the husband be permitted to deliver or pick up items from the printers or commercial advertisers at the request of his wife or any member of her campaign committee. The Commission also referenced a 3-15-04 Advisory Opinion in advising that the husband’s campaign activity could only occur “after office hours and outside the area where court proceedings are conducted.” The Commission noted that if the probation officer’s wife should be elected Magistrate, the issue of possible reassignment of the probation officer would be best handled by the relevant Circuit Judge. | |
| 1/13/12 | 5C(2) | Political Activity | The Commission advised a Magistrate that if he/she will not be accepting any contributions from other parties, then he/she does not have to have a campaign committee. The Commission stated that this Opinion serves to overrule the prior contrary Opinions of 2000 and 2004 on this issue. | |
| 4/26/11 | 5 | Political Activity | The Commission advised that a Judge could become a donor and contribute money to the County Democratic Executive Committee pursuant to the language in Canon 5C(1)(a)(iii). | |
| 1/27/11 | 5A(2) | Political Activity | The Commission advised that a city council member is not required to resign that position in order to run for Magistrate. However, the Commission noted that if the individual is elected as a Magistrate, then, pursuant to Article VIII, Section 7 of the West Virginia Constitution, he/she would be required to resign the city council position. | |
| 1/27/11 | 5A(2) | Political Activity | The Commission advised a Magistrate who is considering running for election as Sheriff that he/she must immediately resign as Magistrate upon announcing his/her candidacy for Sheriff. The Commission further advised that nothing in the Code of Judicial Conduct would preclude him/her from announcing his/her candidacy on a public sidewalk outside the Magistrate Court building. | |
| 1/27/11 | 5 | Political Activity | The Commission advised a possible candidate for Magistrate that the Code of Judicial Conduct does not preclude him/her from making a loan to his/her campaign committee and then having the campaign committee later repay the loan from obtained political contributions. | |
| 9/19/08 | 5C | Political Activity | The Commission advised that it would not be permissible for a judge to donate excess campaign funds to the county or state Democratic Executive Committee since the Code provides that a "candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others." | |
| 12/21/07 | None cited | Political Activity | The Commission advised that an incumbent judge, when running for a different judicial office, should not use the term "Judge" in campaign materials without clearly indicating that he or she is a judge of a court different from the one that is the subject of the political campaign. | |
| 10/31/07 | 5 | Political Activity | The Commission advised that a judge who has filed the appropriate pre-candidacy papers, and has a committee, could begin campaigning in a non-election year. | |
| 12/21/07 | 5 | Political Activity | The Commission advised a Mental Hygiene Commissioner would he/she would be required to resign from that position in order to run for the office of Prosecuting Attorney. The Commission also advised that the Mental Hygiene Commissioner’s law partner, who is also a Mental Hygiene Commissioner, could, as a "continuing part-time judge," serve as Treasurer for the Mental Hygiene Commissioner running for Prosecutor. | |
| 12/28/07 | 5 | Political Activity | The Commission advised that if a judicial candidate receives no campaign contributions from any source but uses only the candidate’s own personal money to fund the judicial campaign, then it would not be necessary for the candidate to utilize a campaign finance committee. | |
| 3/24/08 | None cited | Political Activity (Campaign statements) |
In an analysis of the United States Supreme Court’s opinion in Republican Party of Minnesota v. White, 122 S. Ct. 2528 (2002), the Commission stated its recognition that pursuant to that case, candidates for judicial office cannot be prohibited from "announcing their views on disputed legal or political issues." However, the Commission noted that the West Virginia Supreme Court has not changed any of the existing Canons of the Code of Judicial Conduct and stated that as a result, the Commission will continue to enforce the rules set out in Canon 5 which require candidates to (a) maintain the dignity appropriate to the office, (b) not make pledges and promises of conduct in office and (c) not make statements which commit, or appear to commit, the candidate with respect to cases likely to come before the court. | |
| 8/2/07 | 5 | Political Activity | The Commission advised a Mental Hygiene Commissioner that he/she need not resign his/her position in order to run for the office of either Circuit Court Judge or Family Court Judge but would have to resign his/her position in order to run for the non-judicial office of Prosecuting Attorney. The Commission further advised that the Mental Hygiene Commissioner would have to resign that position if he/she accepted a position as an Assistant Prosecuting Attorney. | |
| 8/19/05 | 5 | Political activities | In response to a request for an opinion analyzing the Code in light of White v. Republican Party of Minnesota, JIC noted that it had submitted a written request to the Court for a review of the Canons which may have been effected by White. The current code remains in effect until the Court may modify or amend the code. | |
| 3/15/04 | 5(A)(2) | Political Activity | Magistrate assistant would be required to resign to run for a nonpartisan position on the Board of Education. | |
| 3/15/04 | Rule 2.13 | Political Activity | Magistrate asked for an advisory opinion relating to his campaign activity. The Commission declined to issue an opinion based on its limited resources and on past practices. | |
| 3/15/04 | 5(A)(3)(b) | Political Activity | Magistrate assistant is bound by the same limitations as the magistrate when it comes to political activity by the assistant acting in support of the magistrate. Assistant would be permitted to conduct limited activity in support of her husband candidate for sheriff after hours and off court premises. | |
| 3/15/04 | 5(C)(2) | Political Activity | Magistrate is required to have a committee to run the candidate’s campaign, such as advertising, handing out brochures or other activities notwithstanding the fact that the candidate is using solely the candidate’s own resources to run the campaign. | |
| 3/15/04 | None Cited | Political Activity | Law clerks should consult their judge with respect to the extent to which the clerk may or may not become involved in political activity. | |
| 3/19/04 | None Cited | Political Activity | Judge was advised that a probation officer’s participation in the campaign of a gubernatorial candidate outside his circuit and not involving making a public verbal endorsement as an employee or representative of the West Virginia Supreme Court of Appeals would cause a problem. | |
| 3/29/04 | 5(A)(1)(b) | Political Activity | Magistrate candidate cannot properly share equipment expense with a candidate for non-judicial office. | |
| 5/17/04 | 5(A)(b) | Political Activity | Judge who is also a musician may not perform as part of a band at a fundraiser for a candidate for prosecuting attorney. | |
| 6/11/04 | 5(A) | Political Activity | Canons do not restrict a Judge’s attendance at a candidate’s forum conducted by West Virginians for Life. Canons do, however, suggest that the Judge not make comments on the issues to be discussed. The United States Supreme Court decision Minnesota v. White, 536 U.S. 765 (2002) suggests otherwise. In view of the Supreme Court decision, JIC advises the Judge to use his own discretion regarding commenting on the issues. | |
| 2/17/04 | 5(A)(a) | Political Activity | Candidate for magistrate would be required
to resign from the position of treasurer of a county political executive
committee. |
|
| 10/24/02 | None | Political Activity | Judicial candidate asks for advice regarding available options in circumstance where candidate missed deadline for designating treasurer of candidate’s campaign committee. State law specifies in the absence of timely designation, the candidate must act as his or her own treasurer; however, judicial candidates are prohibited from so acting. JIC response advised that candidate should seek legal remedy indicating the inquiry was not an ethical question. | |
| 12/30/02 | 5 | Political Activity Advertisement |
Judge’s wife is conducting reelection campaign for judge. Wife wants to use family photo in campaign material. Photo includes her husband but does not identify him as judge. Citing to the Canon and JIC Advisory Opinion 2/25/94, JIC advises that such use of a photo is permissible. | |
| 12/02/02 | 5C(2) | Political Activity Fund Raising |
A fund raiser to be held to pay off campaign debts would be in compliance with the Canon so long as the fund raiser was conducted by the candidate’s campaign committee. The fact that the idea for the fund raiser was initiated by lawyers would not affect the result. The fact that the campaign debts were those of the candidate and the candidate’s parent would not affect the result. | |
| 6/8/00 | 5 | Political Activity | A senior status judge who has given his old signs to a friend who in turn wishes to give the signs to a candidate should insure that his name is covered so that it does not appear that the judge is endorsing the candidate. | |
| 6/7/96 | Political Activity (advocate's candidacy for judicial officer) | No canon requires an advocate for domestic
violence victims to resign that position upon becoming a candidate
for judicial office; but if elected, the judicial officer may be required
to recuse self from cases involving domestic violence issues in order
to avoid the appearance of partiality or reasonable questioning of
impartiality. |
||
| 2/25/94 | 5A | Political activity (appearance with spouse who is a candidate) | A judicial officer may attend campaign rallies
or other social functions with a spouse who is a candidate for judicial
office. |
|
| 3/28/02 | 5(A) | Political activity Appearances Literature Fund raising |
A candidate for judge may be listed on campaign
materials along with the names of other candidates for elected public
office and may appear in promotions of the party ticket. Candidates
for judge may not, however, campaign, travel and visit potential voters
with another candidate for either a judicial or non-judicial office. A
magistrate candidate may not solicit campaign support for a family
court judge nor may such candidate for magistrate carry or erect a
family court judge’s signs. |
|
| 6/14/95 | 5C(1) | Political activity (attendance at candidate's fundraiser) | A judicial officer may attend a public fundraising event for a political candidate. | |
| 8/28/95 | 5C(1) (iii), 5A(1)(e), and 5C(1)(a)(i) | Political activity (attendance at fundraiser dinner for fellow judicial officer) | While a judicial officer may attend political
gatherings, a judicial officer may not pay to attend a fundraiser
for an individual political candidate. |
|
| 11/5/90 | 7A [(1)(b)] & (2) | Political activity (attendance at or contribution to a candidate's fund raiser) | Judicial officer, whether currently a candidate
or not, may buy a ticket for, and attend, a fund raiser for a candidate
without violating the ethical prohibition against public endorsement
of candidates. |
|
| 11/3/95 | 6C & 5 | Political activity (attendance by part-time family law master at a political party fund-raiser dinner) | A part-time family law master may attend
a political party fund-raiser dinner. A part-time family law master
is classified as a continuing part-time judge and is exempt from certain
restrictions contained in Canon 5 dealing with inappropriate political
activity on the part of judges and judicial candidates. |
|
| 1/12/00 | 4 & 5 | Political activity (attendance: "elimination dinner" for non-profit organization) | A judicial officer may attend a fund raiser
referred to as an "elimination dinner," which raises funds
in a lottery fashion for a non-profit group. However, the judicial
officer or candidate must not solicit funds for the organization or
for himself or herself. Furthermore, the judge or judicial candidate
should not attend such a function if the sponsor is an organization
which regularly appears before the judge or any court. |
|
| 2/28/92 | [7] | Political activity (bumper stickers) | It would be improper for an incumbent who
is a candidate for judicial office to display a campaign bumper sticker
on his/her private automobile if the vehicle were on court premises. |
|
| 3/23/98 | 5C(2) | Political Activity (campaign advertisement) | An advertisement in which the judicial
candidate speaks in the first person describing his/her experiences
and career history may not include at the bottom of the advertisement
the statement "Contributions May be Made to Treasurer at Above
Address." Such a statement gives the appearance that the judicial
candidate is personally soliciting campaign contributions. |
|
| 9/23/96 | 5C(2) | *Political activity (campaign contributions) | A candidate for judicial office may establish
a committee or a responsible person to accept campaign contributions,
but may not personally accept campaign contributions. |
|
| 2/15/95 | 5C(2) | Political activity (campaign checking-account signature card) | A judicial officer or candidate for judicial
office is not permitted to be named on the checking-account signature
card for purposes of signing checks for his or her campaign committee. |
|
| 5/5/92 | 7A(2) & (4) | Political activity (campaign committee service) | It is improper for a judicial officer to serve as an officer of a Presidential campaign committee. | |
| 2/28/92 | 2 | Political activity (campaign literature) | It is improper for a judicial officer to
use the State seal with his/her official title and courthouse address
on campaign literature because it gives the appearance of official
stationery. |
|
| 9/23/96 | 5C(2) | *Political activity (campaign contributions) | A candidate for judicial office may establish a committee or a responsible person to accept campaign contributions, but may not personally accept campaign contributions. | |
| 2/10/97 | 5A(1)(b) | *Political activity (campaign contributions) | A candidate for judicial office may not
make a monetry contribution to the campaign of another judicial candidate. |
|
| 4/14/00 | 5C(2) | Political activity (campaign contribution) | >A former judicial officer may not contribute
all or a portion of unspent excess funds in his or her campaign committee
account to the election committee of a state candidate for political
office (non-judicial). |
|
| 2/28/92 | 2 | Political activity (campaign literature) | It is improper for a judicial officer to
use the state seal with his/her official title and courthouse address
on campaign literature because it gives the appearance of official
stationery. |
|
| 2/19/02 | 5(A) | Political activity (campaign signs) | A judge may sell campaign signs, which are
vinyl and reusable since in the preparation for reuse, there would
be nothing left to indicate that they were once the property of the
judge. It would be improper to make a gift of such signs since
such a gift may constitute a contribution prohibited by Cannon 5(A). |
|
| 2/25/94 | 5A(2) | Political activity (candidate for non-judicial office) | A family law master is prohibited from retaining
that judicial office while running for election to the non-judicial
office of county commissioner. |
|
| 8/28/95 | 5(A)(1)(e) | Political activity (contributions to a fellow judicial officer's campaign) | A judicial officer may not contribute to an individual judicial officer's campaign. | |
| 8/28/95 | 5 | Political activity (contributions to fellow judicial officer's campaign by judicial officer's family member) | A spouse, an 18-year-old child, a 15-year-old
child, an adult brother, and a 72-year-old mother of a judicial officer
may contribute to the campaign of a fellow judicial officer if the
contribution comes from a separate account from any account the judicial
officer may have with the relative. |
|
| 7/3/92 | 7 | Political activity (endorsement of candidates by employees of a judicial officer) | Incumbents who are candidates for judicial
office are not permitted to request or require their employees to attend
political functions and make speeches on their behalf. Because of constitutional
considerations, however, the canon cannot prohibit a judicial employee
from voluntarily and freely endorsing a candidate for judicial office. |
|
| 7/27/00 | 5 | Political Activity Fund Raising |
A committee for a candidate for judge may
raise funds by the sale of tickets to an event or entry fees to a golf
tournament as long as the same is done without the candidate’s knowledge
or input. Note is made that contributions which the judge has knowledge
may be relevant to disqualification under Cannon 3E. |
|
| 12/28/99 | 5A(1)(e) A(3)(a),5C(2) |
Political activity (fund-raising: spouse on campaign committee) | Since a judicial candidate may not personally
solicit funds and the candidate should encourage members of his or
her family to adhere to the same standards of political conduct, a
judicial candidate’s wife is prohibited from serving as the candidate’s
campaign treasurer. |
|
| 12/28/99 | 5C(2) | Political activity (fund-raising: stepchild on campaign committee) | Code of Judicial Conduct does not prohibit
a judicial candidate’s adult stepchild who is not residing in the candidate’s
household from serving the candidate’s re-election campaign committee
as treasurer. |
|
| 1/12/00 | 5C(2) | Political activity (fund-raising in judicial candidate's home) | A judicial election committee may not hold
a fund raiser in the home of the candidate. Even if the candidate did
not personally solicit or accept contributions, funds being raised
in the home of the candidate would, at a minimum, create an appearance
of personal involvement. |
|
| 2/25/94 | 5A(1) | Political activity (involvement in campaign of spouse) | It is not permissible for a judicial officer
whose spouse is a candidate for prosecuting attorney to be involved
in the following activities related to the spouse's campaign: fund-raising
activities; volunteer manual labor; driving a vehicle normally driven
by the spouse when the vehicle displays campaign stickers; handing
out campaign signs or posters previously requested by individuals;
or delivering or picking up materials from printer or commercial advertiser
at the request of the spouse or a member of the spouse's campaign committee. |
|
| 4/18/00 | 5A | Political activity (judicial candidate acting as expert witness | A judicial candidate may continue to act
as an expert witness in the field of insurance during his or her campaign.
However, a judicial candidate is prohibited from using any position
which he or she might take as an expert witness to advance his or her
campaign by publicizing the opinion or using it in a political way. |
|
| 2/18/00 | 5A | Political activity (judicial candidate and daughter on same ballot) | The appearance of a judicial candidate’s
name on the same ballot as his daughter who is running for county prosecutor
does not violate the prohibition against a judicial candidate publicly
endorsing or opposing any candidate for public office. |
|
| 3/10/00 | 4B & 4C(1) | Political activity (legislative contact) | It is permissible for the West Virginia Family
Court Association to sponsor a reception at the Capitol at which refreshments
are served and to which all legislators and their staffs would be invited.
Also, the Association may collect assessments from its membership to
be used to purchase and replenish candy jars with the Association’s
name on them to be placed in the offices of the legislators for distribution
to guests and constituents during the legislative session. |
|
| 1/12/00 | 5C(2) | Political activity (necessity of campaign committee) | A judicial candidate is required to have a campaign committee if the candidate wishes to conduct traditional campaign activities such as mailings, brochures, media advertisements, and other such activity even though the candidate will personally finance such activities. | |
| 11/8/93 | 5A (commentary) & 5C | Political activity (of spouse) | The spouse of a judicial officer may serve
as a member of a county democratic executive committee. |
|
| 3/4/96 | 5A(d) | Political activity (parking private automobile with re-election campaign sign attached in designated parking spot near courthouse) | A judicial officer should not park a privately
owned automobile with a re-election campaign sign attached to the automobile
in a parking spot located near the courthouse and designated as the
parking spot for the on-call judicial officer. |
|
| 4/19/96 | 5A(1)(d) | Political activity (parking private automobile, with re-election campaign sign attached, near building housing various court offices) | A judicial officer is prohibited from parking
a privately owned automobile displaying a campaign sign in a parking
spot, rented from the county building commission, on a lot which is
adjacent to a building which houses magistrate offices, the magistrate
clerk's office, and the family law master's office. |
|
| 11/5/90 | 7A(1)(b) | Political activity (public endorsement of candidates) | Judicial officer who is not currently
a candidate is prohibited: from publicly endorsing any candidate (judicial
or non-judicial); from displaying posters billboards, etc. on private
property; and from displaying posters, bumper stickers, etc. on private
automobiles. |
|
| 9/30/91 | 4; 7B(1) & (2) | Political activity (public endorsement or opposition to a judicial candidate by a judicial officer) | Improper for an incumbent who is a candidate
for judicial office publicly to endorse another candidate for judicial
office even if the former believes that the election of the latter
would "promote the proper administration of justice"; improper
for a judicial officer, whether or not a candidate, publicly to oppose
the candidacy of a lawyer for judicial office even if the former believes
that the election of the latter would be detrimental to "the proper
administration of justice." |
|
| 8/28/95 | 5 | Political activity (restricted contribution to county political party executive committee) | A judicial officer may contribute to a county
political party executive committee if the committee meets the definition
of a political organization under the Code of Judicial Conduct, but
the contribution may not be restricted for use only in a fellow judicial
officer's campaign. |
|
| 2/19/02 | 6(A)(B) 5(A) |
Political activity Senior status magistrate filing for office of county commission |
Cannon 5A(2) requires a judge to resign
from judicial office upon becoming a candidate for a non-judicial office. WV
Const Article 8, Section 7 states that a judge shall not become
a candidate for any elective public office, except a judicial office;
and violations ...shall vacate his judicial office. The Commission
found that a Senior Status Magistrate may not be a candidate for county
commission since the Cannons bind senior status magistrates. |
|
| 11/3/95 | 5A | Political activity (service as moderator of a debate between candidates for governor) | A judicial officer may serve as a moderator of a debate between candidates for governor. | |
| 8/28/95 | 5A and 5C | Political activity (spouse-sponsored fundraiser) | A judicial officer's spouse may have a
political fundraiser in the home in which the judicial officer and
spouse reside if the judicial officer is careful not to become involved
in raising funds for a candidate or organization or endorsing any candidate
and is careful to avoid: (1) any public endorsement of or public opposition
to a political candidate and (2) the solicitation of funds for a political
organization or candidate. |
|
| 3/8/00 | 5 | Political activity (staff appearing in campaign commercials) | There is no prohibition against a judicial
officer who is a candidate for re-election using staff for appearances
in campaign commercials. It should be noted that such staff would be
appearing voluntarily and during their own time. |
|
| 3/10/00 | 2 | Political activity (state seal on campaign material) | It is prohibited for a judicial officer
to use the State seal on campaign material as all official judicial
letterhead bears the seal. Thus, the use of the seal would be confusing
to the public and give the appearance that official letterhead was
being used to further a political campaign. |
|
| 3/13/00 | 5 | Political activity (unopposed judicial candidate) | An unopposed judicial candidate who does
not intend to engage in campaigning is not required to establish a
campaign committee or hire a treasurer. |
|
| 9/23/96 | 2B | *Political activity (use of facsimile of letterhead) | A judicial officer may not use a facsimile
of letterhead indicating his or her capacity as a judicial officer
for mailings to individuals during a campaign for judicial office. |
|
| 7/23/92 | 7A(2) | Political contributions(executive committee) | Judicial officers may make contributions,
within the amounts allowed by statute, to a county executive committee. |
|
| 06/21/19 | WVCJC Rules 4.1(A)(9),(10) and (11), Rule 4.1(B) | Political Contributions | JIC Advisory Opinion 2019-15. In JIC Advisory Opinion 2018-22, issued on December 17, 2018, the Commission was asked, among other things, what a judicial candidate’s obligations were if a third-party or political action committee (PAC) makes false or misleading statements about an opponent in a campaign. The Commission held that judicial candidates must disavow attacks and request the third-party or PAC to cease and desist: (1) any false or misleading statements made about opponents: (2) any statements that do not accurately reflect the duties and role of a judge; or (3) any statements that indicate that a judge or candidate is not neutral and is biased in favor or against an individual, group, or legal issue. The purpose of this opinion 2019-15 is to provide understanding of when and where the candidate’s obligations arise. With respect to category No. (1), the Commission does not believe that a judicial candidate is obligated to disavow every third-party or PAC misrepresentation. A judicial candidate’s awareness of the third-party or PAC campaign, is not, in and of itself, enough to impose a duty to monitor and address the group’s statements. The Commission is of the view that the obligation to disavow is not triggered until the following criteria are met: (a) the statement must involve a fact and not an opinion: (b) the fact must be substantive and significant; (c) the misstatement must actually be false or a material misrepresentation; and (d) the judicial candidate has knowledge of the third-party or PAC’s factual statement and its falsity. Once the obligation to disavow is initiated, the Commission finds that the situation is resolved through the timely issuance of a press release to all area news media and a prompt letter to the third-party or PAC instructing it to immediately stop running the false statement in question. Regarding Category Nos. (2) and (3), the Commission believes the obligation arises immediately. | |
| 8/30/16 | 4.1 and 4.2 | Political contributions | It was the Commission’s opinion that it would not be proper for a judge’s campaign committee to donate excess campaign contributions to the local bar association for the judge’s official portrait since it is not an allowable expenditure under either the Code of Judicial Conduct or state law. | |
| 2/29/16 | 4.1(A)(6) and 4.4 | Political contributions | The Commission was presented with a scenario whereby a candidate for Circuit Court Judge, who was self-financing her/his campaign, and who did not have a campaign committee or treasurer, wanted to know if it would be permissible for a group of friends and associates to hold a campaign “meet and greet” event for the candidate, during which no donations would be requested or received. It was the Commission’s opinion that the candidate could not allow the group to pay for a “meet and greet” event unless the candidate had a campaign committee in place, stating that the event would be reportable by the candidate as a contribution/expenditure and therefore would be a violation of Rule 4.1(A)(6) for the candidate to personally accept the same without a campaign committee. | |
| 9/5/90 | [7A] | Political contributions (individual candidate) | Improper for judicial officer to contribute
to individual politician's campaign committee. |
|
| 6/14/95 | 5(C)(1) | Political contributions (political candidate) | A judicial officer may not contribute to
a political candidate. |
|
| 9/1/00 | 5A(b); 5C | Political contributions | A judge may donate, subject to adherence
to appropriate election laws, space for a political party headquarters. |
|
| 08/2/19 | WVCJC Rule 4.1(A)(9) |
Political activity | JIC Advisory Opinion 2019-18. During the summer before a student’s third year of law school, the student received a certification from the Supreme Court of Appeals of West Virginia stating that the student complied with all of the requirements of Rule 10, et. seq., of the Rules for Admission to practice Law, Relating to Legal Assistance by Law Students to Persons Unable to Pay for Services, and that their supervising attorney was a Prosecuting Attorney. The student worked at the Prosecutor’s Office and graduated law school in May of 2012. They did not receive another Rule 10 certification after graduating from law school. The student did not take the July 2012 bar examination, the first time the student sat was February 2013. While awaiting the results of the examination, they were hired as a full-time “assistant prosecutor.” The Prosecutor’s Office and the individual were mistaken believing that the individual could practice pursuant to Rule 10 while awaiting exam results. However, the individual did not comply with the Rule 10.2(a) requiring that the bar examination be taken immediately after graduation. Shortly after being employed as an “assistant prosecutor” they were notified that they did not pass the bar examination and the prosecutor’s office had to terminate employment. In 2019 this individual was appointed to serve as Magistrate and they have decided to run for re-election in 2020. In their advertisement the slogan “The Right Experience, The Right Choice” is used. Directly underneath the slogan, the candidate’s experience is listed, including working as an “Assistant Prosecutor.” Rule 4.1.(A)(9) states that “a judge or judicial candidate shall not knowingly, or with reckless disregard for the truth, make any false or misleading statement.” Based upon this Rule, the Commission determined that the Magistrate cannot use the term “assistant prosecutor” in campaign advertisements since they never served in that capacity. The Commission found it would be a material misrepresentation and leave the public with the mistaken impression that the magistrate has a license to practice law in West Virginia. Therefore, they may not state that they served as an assistant prosecutor but may say that they interned or clerked at the Prosecutor’s Office. | |
| 12/6/96 | Const. Art. 8, §7, W.Va. Code §50-1-4 & 12, WV Judicial Inquiry Commission v. Allamong, 162 W.Va. 652, 252 S.E. 2d 159 (1979) | Practice of law (by attorney magistrate) | An attorney magistrate is not prohibited from practicing law before the Supreme Court of Appeals. A magistrate who is an attorney may engage in the practice of law to the extent that it does not interfere with the full performance of magistrate duties. | |
| 05/09/19 |
|
Practice of Law | JIC Advisory Opinion 2019-12. A Circuit Judge was appointed on January 2, 2019. Prior to this, the Judge served on the Board of a non-profit. The Commission determined that under Rules 1.2 and 3.7, a judge may continue to serve on the board of a non-profit, with certain restrictions. In this case, the Judge may not be the signatory for any legal documents, contracts, rental agreements, etc. The Judge should not engage in any negotiations with prospective renters/leaseholders as it might be misconstrued by members of the public that they are practicing law in violation of Rule 3.10 of the Code of Judicial Conduct. If a court case would come before the Judge involving the non-profit as a renter or leaseholder who has an active agreement signed by the Judge, the Judge should disclose the same on the record and follow Trial Court Rule 17 where applicable. The Judge cannot engage in any fundraising for the non-profit except from family members and Judges of equal or greater rank. The Judge may attend dinners or fundraisers for the organization but should refrain from any participation in press events publicizing donations to it. Beyond those admonitions, the Judge may otherwise participate as a board member of the non-profit. | |
| 10/5/10 | 4G | Practice of law | The Commission advised that the Judge was not in violation of Canon 4G by virtue of having assisted his wife and sister-in-law in preparing documents relevant to a lawsuit in which they were involved as plaintiffs and in which they were representing themselves. In addition, the Commission advised that the Judge was not required by the Canons to notify the court or the parties that the Judge was advising the plaintiffs and preparing and reviewing documents for them. | |
| 6/14/95 | 4(G) | Practice of law (by judge) | It is inappropriate for a circuit judge
to prepare tax returns for individuals who are not members of the judge's
family. |
|
| 4/5/01 | 4E | Practice of law Executor of an Estate of a former client |
A judge should not serve as Executor of
an estate of a former client even though such service would be easily
completed by the judge. In this case the judge had former law partners
who were willing to complete the settlement of the estate. |
|
| 6/14/95 | 4F; W.Va. Const. Art. 8, §7; Judicial Inquiry Commission v. Allamong, 162 W.Va. 652, 252 S.E.2d 159 (1979) | Practice of law (by magistrate, service as an arbitrator or mediator) | The Supreme Court has set perimeters under
the constitutional provision allowing magistrates to practice law.
Because the Constitution permits the practice of law by a magistrate,
the prohibition against a magistrate serving as an arbitrator or mediator
in Canon 4F is precluded with respect to magistrates but it does apply
to judges. A magistrate who is also an attorney may serve as an arbitrator
or mediator. |
|
| 12/9/94 | 6C | Practice of law (by part-time family law master) | A part-time family law master does not
violate the Code of Judicial Conduct by contracting as a deputy commissioner
to render decisions on backlogged cases in the workers compensation
system, if the activity under the contract does not include taking
evidence and is limited to reviewing files, writing draft decisions,
and taking a standard fee. |
|
| 6/14/95 | 6C(1) and (2) | Practice of law (by part-time family law master) | A part-time family law master may act as
counsel in a case before the Supreme Court of Appeals if that case
does not involve the same subject matter jurisdiction as that of a
part-time family law master. See also an advisory opinion issued by
the JIC on December 9, 1994, which concludes that a part-time family
law master may contract with the Workers' Compensation system if the
activity under contract does not include taking evidence and is limited
to reviewing files, writing draft decisions, and taking a standard
fee. |
|
| 12/9/94 | 6C | Practice of law (by part-time family law master) | A part-time family law master does not
violate the Code of Judicial Conduct by contracting as a deputy commissioner
to render decisions on backlogged cases in the workers compensation
system if the activity under the contract does not include taking evidence
and is limited to reviewing files, writing draft decisions, and taking
a standard fee. |
|
| 5/21/98 | 6C | Practice of law (by part-time family law master) | A part-time family law master may not serve
as a guardian ad litem in abuse and neglect cases because the potential
for conflicts of interest are great given that many cases which are
before a family law master involve issues of abuse and neglect. |
|
| 12/11/97 | Canon 6C(2) and State ex rel. Bailey v. Facemire, 413 S.E.2d 183 (W. Va. 1991) | Practice of law (by part-time family law master in adoption cases) | A part-time family law master is not per
se prohibited from representing a party in an adoption proceeding given
that adoptions are heard and decided by the circuit court even though
there may be some contested cases which could be assigned to family
law masters. However, the family law master must investigate whether
conflicts of interest either are present or have the potential of arising
before undertaking representation. |
|
| 6/6/96 | 6C and Commentary | Practice of law (by part-time family law master, domestic relations in another state) | Such practice is impermissible. | |
| 11/3/95 | 6C | Practice of law (by part-time juvenile referee) | A part-time juvenile referee may serve as
a criminal defense lawyer in counties other than the county in which
he or she serves as a juvenile referee. |
|
| 3/21/02 | 6 | Practice of Law: Mental Hygiene Commissioner |
A Mental Hygiene Commissioner is not disqualified
from accepting appointment to represent a defendant because his law
partner who also serves as a mental hygiene commissioner communicated
to the inquirer that the defendant had committed some crime or act.
Such information apparently came into the possession of the law partner
as a result of hearings conducted for the defendant before the inquirer
and his partner entered into the partnership. |
|
| 11/11/91 | 7C | Practice of law (retired judges and recall) | Retired judge is not prohibited from practicing
law in those counties in which the judge is either not eligible or
declines recall as a judge. Retired judge may be recalled to serve
as a judge in areas outside the counties where the judge practices
law. |
|
| 11/25/96 | 2A & 4D(1), (a) & (b) | Private investigation firm license | Upon taking office, a judicial officer may not act as, nor accept employment as, a private investigator and may not maintain a private investigation firm license. (See also related 23 October 1996 advisory opinion listed under topic of Employment (as a private investigator)). | |
| 9/15/00 | 1;2 | Public Comment | A senior status judge who also is a county commissioner may not participate in a public forum or answer a questionnaire, which would place him in a position of commenting upon questions and issues, which may come before him. | |
| 9/10/19 | WVCJC Rule 2.10 | Public Comment | JIC Advisory Opinion 2019-21. A Judge was asked to appear on a nationally broadcast podcast hosted by Nancy Grace, a well-known legal commentator and journalist. The discussion would be regarding “cold cases” in other states. Based upon Rule 2.10, the Commission found that it would be improper for the Judge to discuss cold cases from other states since those matters could one day come before a court. | |
| 6/13/19 | WVCJC Rule 2.10 | Public Comment | JIC Advisory Opinion 2019-16. A Judge issued a rule to show cause against the West Virginia Department of Health and Human Resources in an abuse/neglect matter upon learning that there was a backlog of 1,100 cases in their jurisdiction that have been referred, but for which no action has been taken for over thirty days. The media learned of the crisis team being sent to the Judge’s county to begin working on the issue and requested comment from the Judge. Can the Judge speak to the media about the backlog and the show cause order? The Commission is of the opinion that Rule 2.10(A), which states a judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any non-public statement that might substantially interfere with a fair trial or hearing, precludes the Judge from making any statement about the matter since the rule to show cause is pending in court. | |
| 9/15/00 | 4 | Public Comment | Family law masters and Family Court Association may publicly advocate for the Unified Family Court Amendment. | |
| 08/27/02 | 3B (9) | Public Comment Generic Reports of Court Activity |
Family Court Judge may provide newspapers a court activity report so long as the report complies with the provisions of Canon 3B(9) relating to public comment regarding pending or impending cases which might reasonably be expected to affect its outcome or fairness. Such disclosures may be made so long as the report is generic in nature and contains information from public records and so long as none of the confidentiality provisions of law are violated. | |
| 2/19/02 | 2(A) 4(C) |
Public Comment - speech to Annual Crime Solvers and State FOP Convention | Given that members of the Crime Solvers
Convention and the State Fraternal Order of Police may appear in the
judge’s court on a frequent basis, a speech to their respective groups
would not be proper. The Commission cited JIC Advisory Opinions 8/29/97
and 4/24/97 and the referred to Cannons. |
|
| 9/28/01 | None cited | Public protest of a zoning ordinance change | A Judge may as a private citizen voice personal opposition to a zoning ordinance where such ordinance would affect his property interest. Should the issue advance to his court he would have to recuse himself. | |
| 6/30/00 | 4H(2) | Public Financial Reports | Investments held by a judge in mutual funds or retirement plans may be reported by simply listing the fund and not the individual investments of the fund. The term “compensation” means income in excess of $500.00, which would be reportable to the IRS. | |
| 1/18/02 | 4(B) | Publication of legal research and analysis | Citing U.S. Advisory Opinion 55 (1977) and Arizona Advisory Opinion 95-4 (1995) and the referred to Cannon, the Commission stated that a Judge could properly submit to the WVU Law Review for publication his authored article on expert testimony. | |
| 7/5/01 | 2 | Purchase of a vehicle by spouse from litigant appearing in husband's court | A spouse of a Family Law Master should not purchase a vehicle from a litigant appearing in husband’s court, especially when a substantial likelihood exists that further proceedings may be necessary and where ownership of the vehicle was decided by the Law Master. | |
| 9/7/89 | 5C | Rental property | Judicial officer may not rent property to attorneys who practice in his or her court. | |
| 1/22/91 | 5C(1) | Rental property | Judicial officer who owns rental property
having as tenants lawyers who practice before the judicial officer
engages in unethical conduct unless the judicial officer does one of
the following: (1) sells the property; (2) refers all tenant lawyers
to another judge in the circuit for their hearings; or (3) rents only
to non-lawyers. Otherwise, the judicial officer's business dealings
could suggest partiality, interfere with the performance of judicial
duties, and involve the judicial officer in frequent transactions with
lawyers likely to come before his or her court. |
|
| 1/22/91 | 3D [& 5C(1)] | Rental property | This opinion turns on a distinction of facts from those involved in the commission's 9/7/89 [and the other 1/22/91] opinion on rental property. As a minority stockholder in a corporation whose sole business is renting apartments, judicial officer does not violate the Code of Ethics even though at least one unit is rented to an attorney who practices before the judicial officer. The judicial officer is not necessarily prohibited from hearing the tenant attorney's cases, but is required to make a full disclosure if the tenant attorney appears before the judicial officer. [This advisory opinion is silent as to whether, after disclosure, the judicial officer would be subject to disqualification upon motion by a party appearing in the same matter. Further, it does not address the requirements of Canon 5C(1), which prohibits any business dealings by a judicial officer which would, among other things, "involve [the judicial officer] in frequent transactions with lawyers . . . likely to come before the court on which [the judicial officer serves"]. | |
| 3/1/93 | 4D(1)(b) | Rental property | It is improper for a judicial officer to continue a leasing arrangement with an attorney, even though all rental matters are handled by the judicial officer's partner, because the judicial officer would still receive equity in the asset. In a one-judge circuit, it is likely that the renter-attorney would appear before the judicial officer frequently. | |
| 6/14/95 | 4(D)(1) | Rental property | It is not permissible for a judicial officer to have an interest with attorneys in a corporation formed for ownership of a building in which two attorney co-owners have offices and in which another attorney rents space. It is also not permissible for a judicial officer to have these attorneys appear before him or her in court. | |
| 12/15/95 | 3E(1) & 4D(1) | Rental property | A judicial officer's campaign committee should not rent office space in a building owned by a partnership when one of the partners is an attorney who practices before the judicial officer. | |
| 6/30/97 | 4 (D)(1) (a) and (b), Matter of Means, 192 W.Va. 380, 452 S.E.2d 696 (1994) | Rental property | A judge should disqualify himself or herself from cases involving lawyers who are tenants of the judge's spouse. In addition, the judge should take action necessary to discourage his or her spouse from becoming involved in situations in which the judge is prohibited from becoming involved under canon 4D. | |
| 6/22/93 | 4D(1)(b) | Rental property (renting from attorney) | It is improper for a judicial officer to rent a residence from an attorney whose law firm partner appears frequently in the judicial officer's court even though the renting attorney does not practice in that court. | |
| 9/28/01 | 5(C)(2) | Retirement of campaign debt | A Judge and unsuccessful candidate for higher judicial office must form a committee in order to solicit funds for the purpose of retirement of a campaign debt. | |
| 9/18/01 | 4A | Riding in a parade | A Family Law Master may ride in a parade in a vehicle with his or her name and title on the vehicle. | |
| 8/26/96 | 4C(3)(b) | Service (a "celebrity goat milker" at a county fair) | A magistrate may serve as a "celebrity goat milker" at a county fair as long as the event does not involve solicitation of funds. | |
| 9/10/19 | WVCJC Rule 3.9 | Service as Arbitrator or Mediator | JIC Advisory Opinion 2019-20.The Commission considered the question of whether a Circuit Judge serving as a mediator in an ad hoc mediation program falls within a judge’s official duties and therefore permissible pursuant to Rule 3.9 of the Code of Judicial Conduct, and whether some form of “enabling authorization” must first be obtained. The Commission noted that Mass Litigation Judges serving as Resolution Judges do not violate Rule 3.9. It is also possible that a multi-judge circuit may set up a Presiding Judge/Resolution Judge structure similar to the Business Court and Mass Litigation by administrative order. In such a case, it would be sanctioned by Order of the Chief Justice, and the duties would be considered official and not violate Rule 3.9. Any legislative enactment or Supreme Court Rule would also suffice. | |
| 12/16/02 | 4C | Service Chamber of Commerce YMCA Board |
Citing JIC Advisory Opinion 6/16/93,
JIC advises that judge should not maintain membership in the Chamber
of Commerce.
Citing Canon 4, JIC advises that judge may continue as Vice-Chair of the Board of Directors of the YMCA so long as judge does not participate in any solicitation of funds or permit the use of the prestige of the office for that purpose. |
|
| 7/26/88 | 5E | Service (arbitrator) | Judicial officer may not serve as an arbitrator in an international (or any) dispute. | |
| 8/18/95 | 4F | Service (arbitrator or mediator) | A new judicial officer may rule on a substantially completed federal court arbitration case begun prior to taking office if, otherwise, under the unique circumstances of the case: (1) the parties' rights to an expeditious decision would be jeopardized; (2) the parties would incur great additional expense; and (3) an inordinate delay in the resolution of the matter would occur. | |
| 10/01/02 | 4C(3) | Service Board of Trustees Local Cemetery Corporation |
Since the Local Cemetery Corporation would be involved in fiduciary, personnel matters, the acquisition of land and the sale of grave plots and financial decisions affecting the cemetery, such duties would conflict with the spirit of 4C(3) and thus a magistrate may not serve in such capacity. | |
| 2/16/01 | 4C(3), 4D, 4E | Service as Trustee on Foundations | Service as a trustee on a family foundation
which does not publicly solicit funds is permitted. Service as a trustee
on a foundation (a former client) centered on the process by which
public policy is or might be made and which relies on private sources
and does not publicly solicit funds is permitted. Service would be
contingent on the restrictions of Cannon 4C(3) and the fact that the
foundation is not conducted for the economic or political advantage
of its members. |
|
| 2/6/97 | 4E(1) | Service (attorney-in-fact for person with whom judicial officer maintains a familiar relationship) | A newly appointed judicial officer may continue
to act as an attorney-in-fact for an 89-year-old person when the judicial
officer has acted in that capacity for 15 years and has developed a
close familiar relationship with that person. |
|
| 12/11/97 | Canon 2A | Service (by judge's spouse, member of CASA Advisory Committee) | A judge's spouse may not serve as a member
of the Advisory Committee of CASA because it could create the appearance
of impropriety since the judge presides over all abuse and neglect
cases filed in that county and since CASA's purpose is to serve as
court-appointed advocates for children who are abused, neglected or
delinquent by speaking up for these children through the state foster
care system and the circuit courts even though the judge's spouse may
not be directly involved in an advocacy role in the judge's court or
any other circuit court. |
|
| 12/28/99 | Non Canon cited | Service (charitable foundation) | A judicial officer's name may appear in the
name of a foundation established to make charitable contributions and
to provide public awareness service, as long as the judicial officer
is not an officer of the foundation and as long as the judicial officer
does not personally appear in any public information advertisements. |
|
| 11/3/95 | 4C(3) & 3E(1) | Service (church trustee by part-time family law master (disclosure)) | A part-time family law master is not precluded
from serving as a church trustee but is required to disclose that information
in any proceeding involving individuals associated with that church. |
|
| 10/01/02 | 4C(3) | Service County Health Sciences and Technology Academy |
Service on the County Health Sciences and Technology Academy, an organization aimed at getting low income and minority students into health sciences fields, is permitted so long as the judicial officer adheres to the provision of Canon 4C(3). | |
| 6/18/93 | 2 | Service (deputy sheriff's civil service commission by a mental hygiene commissioner) | A mental hygiene commissioner is a holder
of public office as defined in W.Va. Code §17-14-3 and is precluded
from serving simultaneously on a deputy sheriff's civil service commission. |
|
| 8/8/77 | 5D | Service (director of bank) | Improper for judicial officer to serve as
director of bank, as it constitutes a fiduciary relationship. |
|
| 10/7/94 | W.Va. Constitution Article 8, §7 | Service (education system hearing examiner) | Since an education system hearing examiner
(superintendent's designee Level II) is not an office or public trust
under the Constitution, a part-time family law master may serve as
hearing examiner. |
|
| 10/28/86 | 4 & 5 | Service (election night commentator) | Judicial officer may not properly serve
as commentator for election night radio coverage. |
|
| 1/5/93 | 4E | Service (executor) | A judicial officer-elect may not continue
to serve as an executor of the estate of a non-family member after
assuming office. |
|
| 2/19/96 | 4E(1) | Service (foundation trustee) | It is impermissible for a judicial officer
to serve as trustee for a charitable foundation that is not affiliated
with the judicial officer's family. |
|
| 12/28/99 | no Canon Cited | Service (judge for pageant) | There is no prohibition against a judicial
officer serving as a judge for the Miss West Virginia Scholarship Pageant. |
|
| 12/28/99 | 4 | Service (judicial fellow in the Association of Trial Lawyers of America) | Because the Association of Trial Lawyers
of America generally represents one side of cases in litigation and
is not generally composed of attorneys who represent both plaintiffs
and defendants, a judicial officer would be prohibited from accepting
a designation as judicial fellow in the Association of Trial Lawyers
of America. |
|
| 09/16/02 | WV Const Art. VIII, Sec 7 |
Service Local Emergency Planning Committee WV Code 15-5A-7 |
Service by a magistrate as Chairperson of the Local Emergency Planning Committee under WV Code 15-5A-7 would trigger the automatic vacation-of-office provisions of WV Const. Article VIII, Section 7, and thus should not be undertaken. | |
| 4/14/00 | no Canon Cited | Service (magistrate acting as mental hygiene commissioner) | So long as a magistrate is designated by
court order within the express authority of W.Va. Code §27-5-1(a),
he or she may be appointed to hold probable cause and emergency detention
hearings involving involuntary hospitalizations. |
|
| 9/21/99 | 3B(7)(d) | Service (mediator) | A judicial officer may mediate a dispute
after voluntarily recusing himself/herself from the litigation and
after the case has been assigned to another judicial officer given
that the affiliations the judicial officer had with the parties which
the judicial officer felt necessitated his/her recusal were remote
and occurred a long time ago. It was also noted that the parties
consented in writing to the judicial officer mediating the dispute
and the judicial officer hearing the case ordered that the judicial
officer mediate the matter. |
|
| 6/6/96 | 4(C)(3) | Service (member, advisory board of center and apartments for the elderly) | A judicial officer may serve on such board, but must disclose membership if a resident appears as a litigant before the judicial officer. | |
| 3/4/97 | 4C(2) | Service (member, American Academy of Matrimonial Lawyers) | A judicial officer may serve as a member
of the American Academy of Matrimonial Lawyers, which would fit within
the definition of an organization devoted to the improvement of the
law, the legal system, or the administration of justice. |
|
| 12/12/94 | 2A & 4C | Service (member, associate organization of the Fraternal Order of Police) | A judicial officer may not be a member of
an associate organization of the Fraternal Order of Police because
such membership would reflect adversely on the judicial officer's impartiality
and would not promote public confidence in his or her integrity or
impartiality. |
|
| 2/7/92 | 5B(1) & (2) | Service (member, board of directors, college foundation) | A judicial officer may serve as a
member of the board of directors of a college foundation, subject to
the limitations of the canon; but the judicial officer may not solicit
funds for the foundation. |
|
| 10/1/97 | Const. Art. 8, § 7 | Service (member, board of directors, Empowering Residents to Achieve Scenic Excellence (ERASE)) | A judicial officer may not hold any other
office, or accept any appointment or public trust under this or any
other government. This includes appointment as a member of the Board
of Directors of ERASE. |
|
| 2/19/96 | 4A(1) & C(3) | Service (member, board of directors of a county family resource network) | It is not appropriate for a judicial officer
to serve as a member of the board of directors of a county family resource
network. |
|
| 2/5/97 | 4C(3)(a) | Service (member, board of directors of a judicial circuit public defender corporation) | A mental hygiene commissioner may not serve as a member of the board of directors of a judicial circuit public defender corporation. | |
| 9/19/88 | 5B | Service (member, board of directors, mental health center) | Judicial officer should not serve on board
of directors of mental health center whose patients often appear before
his or her court. |
|
| 4/11/96 | 4(C) | Service (member, board of directors, mental health organization) | A mental hygiene commissioner may not serve
as a member of the board of directors of a local mental health organization. |
|
| 11/25/96 | 4C(3)(a) | Service (member and service as officer, board of directors of a community mental health center) | A mental hygiene commissioner is prohibited from serving as a member and president of the board of directors of a community mental health center. | |
| 9/23/92 | 5B | Service (member, board of directors, Mountaineer Habitat for Humanity, Inc.) | A judicial officer may serve on this board subject to the limitations of Canon 5B. | |
| 3/6/90 | 5B | Service (member, board of directors, non-profit foundation) | Judicial officer may serve on board of directors
of non-profit foundation for improvement of state park, provided he
or she conforms to the conditions of Canon 5B. |
|
| 11/25/96 | 4A(3)(a) | Service (member, board of directors of a non-profit hospital) | Because of the changing nature of non-profit
hospitals and the attendant increase in litigation involving these
hospitals, a judicial officer may not serve as a member of the board
of directors of a non-profit hospital. |
|
| 2/7/92 | 5B(1) & (2) | Service (member, board of directors, sheltered workshop; regional convalescent center; YMCA; hospice) | A judicial officer may serve on the board of directors of such nonprofit community service organizations, subject to the limitations of the canon. | |
| 3/31/97 | 4C(3)(a) & (b) | Service (member, board of directors of a county United Way organization) | A judicial officer may not serve as a member
of the board of directors of a county United Way organization because
of the organization's fundraising activities and the possibility that
funding recipients would appear in court proceedings. |
|
| 10/2/95 | 4 | Service (member, board of zoning appeals) | Because these boards are often involved
in litigation in circuit court, it is inappropriate for a family law
master to sit as a member of a board of zoning appeals. |
|
| 6/16/93 | 4C(3)(a) | Service (member, city parks and recreation advisory committee) | A judicial officer may not serve as a member
of a city parks and recreation advisory committee because criminal
and civil cases are brought before the court by the city. |
|
| 11/17/97 | 4C | Service (member, college criminal justice advisory board) | A judicial officer may provide faculty with
ideas about how to best structure the criminal justice program at a
state college and, thus, may serve on the board of advisors for the
criminal justice program. |
|
| 11/8/93 | 4C(2) & 3 | Service (member, college criminal justice advisory committee) | A judicial officer may serve as a member
of a college's criminal justice advisory committee which provides a
means of communication between the faculty and committee professionals
for the purpose of maintaining a quality program to meet the needs
of students and criminal justice agencies who may hire graduates. |
|
| 10/15/96 | W.Va. Const. Art. 8, §7 | Service (member, county board of education) | A senior-status judicial officer may not
serve as a member of a county board of education while serving as a
judicial officer. |
|
| 6/14/95 | 4C(3)(a) | Service (member, county board of health) | A judicial officer should not serve as a
member of a county board of health. |
|
| 10/4/94 | 4B | Service (member, Directory Subcommittee of State Bar's Children and Law Commission) | Such service activity by judicial officers is not only permitted but encouraged by Canon 4B. | |
| 2/7/97 | 1A, 2A, 3B(2), 4A(1)(2)(3) & 4C(1)(2)(3)(a) | Service (member, domestic violence coordinating council) | A judicial officer may not serve as a member
of a domestic violence coordinating council, as activities of such
a council are set out in a draft description developed by the Administrative
Office. |
|
| 6/23/97 | 1A, 2A, 3B (2), 4A (1) (2) (3) and 4C (1) (2) (3)(a) | Service (member, domestic violence coordinating council (revised opinion)) | A February 1997 advisory opinion (27 February
1997 Judicial Newsletter) provided that a judicial officer may not
serve as a member of a domestic violence coordinating council. In a
revised advisory opinion, the Commission determined that a judicial
officer may participate in coordinating councils to address issues
such as domestic violence as long as the participation is consistent
with the Code of Judicial Conduct and the judge's impartiality is not
placed in question. |
|
| 10/1/97 | Const. Art. 8, § 7 | Service (member, Emergency Services Advisory Council) | A judicial officer may not hold any other
office, or accept any appointment or public trust under this or any
other government. This includes appointment as a member of the Emergency
Services Advisory Council under the provisions of W.Va. Code §15-5-8.Z |
|
| 6/7/85 | 5B | Service (member, extension service committee) | Not improper for judicial officer to serve
on extension service committee which meets once a year to approve budget. |
|
| 2/5/97 | 4F & 6B(4) | Service (member, Fee Resolution Committee for the West Virginia State Bar) | A senior-status judge may serve as a member of the Fee Resolution Committee of the West Virginia State Bar. | |
| 9/3/93 | 4A & 4C | Service (member, juvenile detention center advisory council) | It is inappropriate for a judicial officer
to serve on a juvenile detention center advisory council because juvenile
proceedings as well as other litigation involving the facility or its
residents may be brought before the court. |
|
| 2/5/97 | No CANON cited, but reference to opinion issued on 18 August 1995, in which CANON 4F was cited | Service (member, lawyer disciplinary board hearing panel activity) | A new judge who served as a member of the lawyer disciplinary board hearing panel prior to taking office may complete his or her service on the panel, which involves only his or her signature on a final stipulation previously agreed upon by the parties. | |
| 9/3/93 | 4A, 4C(3)(a) | Service (member, police civil service commission) | A judicial officer may not serve as a member
of a police civil service commission even though it is a voluntary,
unpaid position because of the possibility that the work of the commission
may result in proceedings before the court. |
|
| 10/7/94 | 4C(3)(b) | Service (member, public library board of trustees) | A part-time family law master may serve
as a member of the board of trustees of a public library if the part-time
family law master is not involved in fund-raising activities. |
|
| 9/20/96 | Const. Art. 8, § 7[¶ 4], CANON 4A(1) and C(2) | Service (member, Regional Jail Authority) | A judicial officer may not serve on the
RJA because membership would be a non-judicial office and because service
would be inconsistent with the Canon provisions cited. |
|
| 2/7/92 | 5B(1) & (2) | Service (member, Rotary Club) | A judicial officer may be a member of Rotary
Club, subject to the limitations of the canon. |
|
| 9/18/95 | 2 & 4 | Service (member, school bond committee) | Because of the controversial nature of school
bond issues in this state and because there is currently litigation
pertaining to school bonds pending before circuit courts and the Supreme
Court, a judicial officer should not serve as a member of a school
bond committee. |
|
| 8/22/97 | Const. Art. 8, §7 | Service (member, State Fire Commission) | A judicial officer may not hold any other
office, or accept any appointment or public trust under this or any
other government. This includes appointment as a member of the State
Fire Commission under the provisions of W.Va. Code §29-3-3. |
|
| 6/14/95 | 4(C) | Service (member, Trial Lawyers Association) | A judicial officer may not be a member of
the West Virginia Trial Lawyers Association. |
|
| 9/3/93 | 4C(3) | Service (member, United Mine Workers of America) | It is improper for a judicial officer to
be a member of the United Mine Workers of America under the language
of Canon 4C(3). |
|
| 12/8/95 | 4C(3) | Service (member, West Virginia Commission for National and Community Service) | A judicial officer may serve as a member of the West Virginia Commission for National Community Service. | |
| 8/18/95 | 4C(2) | Service (member, West Virginia Mental Health Planning Council) | A judicial officer may serve as a member
of the West Virginia Mental Health Planning Council, with recusal if
reasons therefor arise in any particular case. |
|
| 12/28/99 | 4 | Service (membership, advisory board of the Salvation Army | A judicial officer may serve on an advisory
board of the Salvation Army. It should be noted, however, that the
judicial officer may not solicit funds for the organization or allow
his or her name to be used for the purpose of soliciting funds. |
|
| 6/16/93 | 4C(3) | Service (membership, chamber of commerce) | A judicial officer is not permitted to be
a member of a county chamber of commerce because the group could be
construed as a civic organization conducted for the economic or political
advantages of its members. |
|
| 6/9/98 | 4A and C | Service (membership, W.Va. Federation of Business and Professional Women's Club, Inc.) | A judicial officer may not belong to the
West Virginia Federation of Business and Professional Women's Club,
Inc. given that the organization's agenda includes advocacy for various
social and political issues as well as monitoring various legislative
matters. Furthermore, a judicial officer should not belong to such
a club since certain legal matters which it sponsors or endorses could
come before the courts given the nature of the organization's activities. |
|
| 10/7/94 | W.Va. Const., Art. 8, §7 | Service (municipal judge) | Since the provision of the Constitution
specifically prohibiting justices, judges, and magistrates from holding
any other office or accepting any appointment or public trust is also
applicable to part-time family law masters, it is improper for a part-time
family law master to serve as a municipal judge. |
|
| 8/18/95 | W.Va. Const., Art. 8, §7 | Service (municipal judge) | A judicial officer may not hold any other
office, including the office of municipal judge. |
|
| 1/26/96 | Const., Art. 8, & § 7 | Service (municipal judge by mental hygiene commissioner) | It is not appropriate for a mental hygiene
commissioner to serve as a municipal judge. Mental hygiene commissioners
are judicial officers [§27-5-1]. Municipal judgeships are offices established
under the Constitution of West Virginia. Judicial officers are prohibited
from holding any other office or accepting any appointment or public
trust under this or any other government. (See also 10/7/94 JIC opinion). |
|
| 11/5/90 | [3A(1)] | Service (notary public) | Absent a specific statutory entitlement
or ruling by the Supreme Court, judicial officers are prohibited from
serving as notaries public because the office of notary is one of public
trust under W.Va. Const., Art. 8, § 7. One who currently serves as
a notary public must choose between continuing as either a judicial
officer or a notary. |
|
| 11/3/95 | No CANON cited | Service (notary public by an assistant to a part-time family law master) | An assistant to a part-time family law master may act as a notary public. | |
| 11/3/95 | Const., Art. 8, § 7a | Service (notary public by part-time family law master) | A part-time family law master may not act
as a notary public. Judicial officers are prohibited from serving as
notaries public because the office of notary is one of public trust.
(See also 11/5/90 JIC opinion.) |
|
| 10/7/94 | 4C(3)(a) | Service (officer, local bar association) | Because some members of a local bar association
may appear before a full-time family law master, a full-time family
law master may not serve as an officer in a local bar association. |
|
| 3/31/92 | 5B(1) & (2) | Service (officer, VFW and/or American Legion) | A judicial officer may serve as an officer
in the VFW and/or American Legion subject to the limitations of the
canon, including the prohibition against participating in any fund-raising
activities of the organization. |
|
| 11/25/96 | 4C(3), (a), (b) & (c) | Service (officer of county fair board) | A judicial officer may serve as an officer
of a county fair board as long as the judicial officer is not involved
in soliciting funds or offering investment advice to that organization. |
|
| 2/16/01 | 4 | Service on a domestic violence fatality review team | Service on a domestic violence fatality
review team formed by the executive branch of state government and
which included members of the Department of Public Safety, the State
Medical Examiner, advocates, prosecuting attorneys, and the Executive
Director of the Medical Association is not a good practice. It was
observed that the teams would be discussing cases which had already
worked their way through the court system and that similar cases would
no doubt be entering the system. |
|
| 3/8/01 | 4D(3) | Service on a board of directors of a CO-OP | A judge or senior status judge may not serve
on a board of directors of a CO-OP which serves approximately 1200
customers and where there is no salary or fees for the directors. |
|
| 12/9/94 | No Code provision cited | Service (parliamentarian at annual federal credit union meeting) | No provision of the Code of Judicial Conduct
would preclude a judicial officer from serving as a parliamentarian
at an annual meeting of a federal credit union. |
|
| 12/28/99 | 4C & 5 | Service (participation with non-profit entities) | A judicial candidate
who is not a judicial officer may continue his or her participation
in nonprofit entities, including membership on the board of trustees
and the solicitation of funds for those non-profit entities. Only
upon election to judicial office would the candidate be expected
to comport to the prohibitions set forth in Canon 4 regarding extrajudicial
activities on the part of a judge. |
|
| 3/16/99 | 4C(3) | Service (president of homeowner's association) | A
judicial officer may not serve as president of a homeowner's association,
a nonprofit entity which responds to complaints from homeowners on
various problems (e.g., barking dogs, speeding, aesthetic issues)
and assesses and implements collection of association dues, since
the president of the homeowner's association could be involved in
adversarial proceedings in the magistrate and circuit courts in the
judicial officer's county. |
|
| 11/3/95 | 4C(3) & Commentary | Service (secretary of the corporate structure of a nonprofit nursing home) | A judicial officer may serve as a secretary
to the corporate structure of a nonprofit nursing home. The judicial
officer should be cognizant of possible conflicts with his or her responsibilities
under the new guardianship statute and he or she should regularly reexamine
the activities of the organization to ensure that changes to the organization
do not make the judicial officer's involvement improper under the canon. |
|
| 9/5/90 | [5G] | Service (solid waste authority) | Improper for judicial officer to serve on
solid waste authority even if located in a county outside his or her
jurisdiction. |
|
| 7/23/92 | 3A(6) | Service (TV station legal correspondent) | It is inappropriate for a judicial officer
to serve as a television station legal correspondent because of the
potential for violation of the canon that bars a sitting judge from
commenting on pending or impending proceedings in any court. |
|
| 2/21/89 | 5D | Service (trustee for family member) | Not improper for judicial officer to serve
as trustee of trust created by uncle's will, provided service will
not interfere with proper performance of judicial duties. |
|
| 1/22/91 | 5D | Service (trustee for non-family member and without compensation) | Judicial officer prohibited from serving
as trustee for non-family member despite receiving no pay for serving
as trustee or having any duties other than providing for the disbursement
of funds in accordance with the individual's wishes. |
|
| 11/3/95 | 4C(3), 4D & 4E | Service (trustee and president of foundation) | A judicial officer may serve as a trustee
and president of a foundation that is a W.Va. corporation. |
|
| 12/28/99 | 4 | Service (trustee on board for a church) | A judicial officer is permitted to serve
as a trustee for a church. |
|
| 9/21/99 | W.Va. Const., Art. 8, § 7 | Service (U.S. Magistrate Judge) | The
provision of the Constitution which prohibits justices, judges, magistrates,
and part-time family law masters from holding any other office or accepting
any appointment or public trust does not prohibit a part-time family
law master from applying for a full-time or part-time U.S. Magistrate
Judge position. [NOTE: A part-time family law master applying for a
U.S. Magistrate Judge position would be subject to the limitations
found in Canon 5B(1) and (2).] However, this particular provision of
the Constitution would prevent a part-time family law master who accepts
a U.S. Magistrate Judge position from continuing as a family law master. |
|
| 8/31/98 | W.Va. Const. Art. 8, § 7 | Service (U.S. Magistrate Judge) | Since
the provision of the Constitution specifically prohibiting justices,
judges, and magistrates from holding any other office or accepting
any appointment or public trust is also applicable to part-time family
law masters, it would be improper for a part-time family law master
to serve as a part-time U.S. Magistrate Judge. |
|
| 6/6/96 | 2B | Sign at ballpark | A judicial officer may support Little League Baseball by purchasing a ballpark sign with a message and the judicial officer's name, but without any judicial identification. | |
| 6/6/96 | 2B | Statements on Cases | JIC Advisory Opinion 2019-16. A Judge issued a rule to show cause against the West Virginia Department of Health and Human Resources in an abuse/neglect matter upon learning that there was a backlog of 1,100 cases in their jurisdiction that have been referred, but for which no action has been taken for over thirty days. The media learned of the crisis team being sent to the Judge’s county to begin working on the issue and requested comment from the Judge. Can the Judge speak to the media about the backlog and the show cause order? The Commission is of the opinion that Rule 2.10(A), which states a judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any non-public statement that might substantially interfere with a fair trial or hearing, precludes the Judge from making any statement about the matter since the rule to show cause is pending in court. | |
| 11/25/97 | 4A, 4B and 3B(9) | Talk Radio show participation | A judicial officer may participate on a "talk
radio" show about legal issues which is sponsored by a law firm
as long as the judicial officer exercises caution when discussing matters
on the program. More specifically, the judicial officer should confine
his or her discussion to those areas addressed by Canon 4B (the law,
the legal system and the administration of justice may be discussed
generally) and must not discuss matters or areas which may come before
him or her. Additionally, the judicial officer should be mindful that
Canon 3B(9) prohibits a judicial officer from making public or nonpublic
comments about any pending or impending court proceeding. |
|
| 9/10/19 | WVCJC Rule 2.10 | Talk Radio | JIC Advisory Opinion 2019-21. A Judge was asked to appear on a nationally broadcast podcast hosted by Nancy Grace, a well-known legal commentator and journalist. The discussion would be regarding “cold cases” in other states. Based upon Rule 2.10, the Commission found that it would be improper for the Judge to discuss cold cases from other states since those matters could one day come before a court. | |
| 06/21/19 | WVCJC Rules 4.1(A)(9),(10) and (11), Rule 4.1(B) | Talk Radio | JIC Advisory Opinion 2019-15. In JIC Advisory Opinion 2018-22, issued on December 17, 2018, the Commission was asked, among other things, what a judicial candidate’s obligations were if a third-party or political action committee (PAC) makes false or misleading statements about an opponent in a campaign. The Commission held that judicial candidates must disavow attacks and request the third-party or PAC to cease and desist: (1) any false or misleading statements made about opponents: (2) any statements that do not accurately reflect the duties and role of a judge; or (3) any statements that indicate that a judge or candidate is not neutral and is biased in favor or against an individual, group, or legal issue. The purpose of this opinion 2019-15 is to provide understanding of when and where the candidate’s obligations arise. With respect to category No. (1), the Commission does not believe that a judicial candidate is obligated to disavow every third-party or PAC misrepresentation. A judicial candidate’s awareness of the third-party or PAC campaign, is not, in and of itself, enough to impose a duty to monitor and address the group’s statements. The Commission is of the view that the obligation to disavow is not triggered until the following criteria are met: (a) the statement must involve a fact and not an opinion: (b) the fact must be substantive and significant; (c) the misstatement must actually be false or a material misrepresentation; and (d) the judicial candidate has knowledge of the third-party or PAC’s factual statement and its falsity. Once the obligation to disavow is initiated, the Commission finds that the situation is resolved through the timely issuance of a press release to all area news media and a prompt letter to the third-party or PAC instructing it to immediately stop running the false statement in question. Regarding Category Nos. (2) and (3), the Commission believes the obligation arises immediately. | |
| 6/30/00 | 2 | Testimony of a Judge | Once subpoenaed a judge may submit a letter in substitution for a personal appearance. | |
| 5/16/19 | WVCJC Rules 1.3, 3.3 | Testimony | JIC Advisory Opinion 2019-13. A Circuit Court Judge’s son married a woman from Indonesia. The United States Citizenship and Immigration Services (USCIS) requested documentation and two affidavits to establish that the Judge’s son and daughter-in-law entered into a marriage in good faith, reside together under one roof, and have a bona fide marital relationship. The question was whether the Judge can 1) submit the affidavit on behalf of the son and daughter-in-law; 2) whether the affidavit, if permitted, could be on judicial letterhead; and 3) if necessary, whether the Judge may testify in court on behalf of the couple. The Commission determined that the Judge may submit an affidavit and testify in court about the validity of the marriage since because of the Judge’s unique knowledge by virtue of the family relationship. However, the Judge should not use judicial letterhead because it could create the perception, however wrong, that the Judge is trying to use the judicial office to influence the decision of the USCIS. | |
| 5/16/19 | WVCJC Rules 1.3, 3.3 | Avoiding Abuse of the Prestige of Judicial Office; Testifying as a Character Witness | JIC Advisory Opinion 2019-13. A Circuit Court Judge’s son married a woman from Indonesia. The United States Citizenship and Immigration Services (USCIS) requested documentation and two affidavits to establish that the Judge’s son and daughter-in-law entered into a marriage in good faith, reside together under one roof, and have a bona fide marital relationship. The question was whether the Judge can 1) submit the affidavit on behalf of the son and daughter-in-law; 2) whether the affidavit, if permitted, could be on judicial letterhead; and 3) if necessary, whether the Judge may testify in court on behalf of the couple. The Commission determined that the Judge may submit an affidavit and testify in court about the validity of the marriage since because of the Judge’s unique knowledge by virtue of the family relationship. However, the Judge should not use judicial letterhead because it could create the perception, however wrong, that the Judge is trying to use the judicial office to influence the decision of the USCIS. |
|
| 6/6/13 | 2(B) and 3E(1) | Testimony and Disqualification | The Commission advised a judge who knew, socially, a doctor indicted by a federal grand jury that, even though subpoenaed by the doctor’s attorney to testify as a character witness, the judge should nevertheless file a motion to quash the subpoena since the demands of justice did not require the judge’s testimony at the doctor’s federal trial. In support of this position, the Commission referenced a position taken by the Indiana Commission on Judicial Qualifications that “a judge’s approach to the question of appearing as a character witness should begin with the presumption that the judge should not do so except where the demands of justice require.” The Commission also advised that the judge should disqualify himself from the criminal case of the doctor’s attorney who had been indicted by a state grand jury. |
|
| 2/19/02 | 2(B) | Testimony of a magistrate as an expert witness | Citing Opinion 95-35 (Florida), Opinion 88-8
(Utah) and JIC Opinion dated 1/16/02 and the referred to Cannons, the
Commission found that a Magistrate may not properly testify in other
courts as an expert. |
|
| 1/16/02 | 2(B)& 6(B) | Testimony of a Senior Status Judge | Citing Opinion 95-35(Florida)and Opinion 88-8(Utah)
and the referred to Cannons, the Commission found that a senior status
judge may not properly appear as an expert witness in a civil case
for the purpose of testifying about the reasonableness of attorney’s
fees in the settlement of a civil action. |
|
| 8/6/15 | TCR 17 | Voluntary Recusal | During a hearing on a defendant’s Motion for a New Trial, the judge disclosed that a witness in the underlying trial was a former tenant of the judge. The judge also disclosed that certain testimony at trial alluded to a personal and professional acquaintance. The defendant claimed that the victim in the case had attended vacation bible school at the judge’s church and said that the judge may have been the class instructor. The judge did not recall meeting the victim. The Commission advised that, in the absence of a disqualification motion, a judge seeking voluntary recusal should proceed according to the provisions of Trial Court Rule 17.01(b) and should transmit to the Chief Justice a letter stating the reasons why the judge is requesting recusal. | |
| 4/14/88 | 3B(3) & 1 | Unprofessional conduct duty to report) | Judicial officer has a duty to report unprofessional conduct of other judicial officers and lawyers. | |
| 08/2/19 | WVCJC Rule 4.1(A)(9) |
Unprofessional Conduct | JIC Advisory Opinion 2019-18. During the summer before a student’s third year of law school, the student received a certification from the Supreme Court of Appeals of West Virginia stating that the student complied with all of the requirements of Rule 10, et. seq., of the Rules for Admission to practice Law, Relating to Legal Assistance by Law Students to Persons Unable to Pay for Services, and that their supervising attorney was a Prosecuting Attorney. The student worked at the Prosecutor’s Office and graduated law school in May of 2012. They did not receive another Rule 10 certification after graduating from law school. The student did not take the July 2012 bar examination, the first time the student sat was February 2013. While awaiting the results of the examination, they were hired as a full-time “assistant prosecutor.” The Prosecutor’s Office and the individual were mistaken believing that the individual could practice pursuant to Rule 10 while awaiting exam results. However, the individual did not comply with the Rule 10.2(a) requiring that the bar examination be taken immediately after graduation. Shortly after being employed as an “assistant prosecutor” they were notified that they did not pass the bar examination and the prosecutor’s office had to terminate employment. In 2019 this individual was appointed to serve as Magistrate and they have decided to run for re-election in 2020. In their advertisement the slogan “The Right Experience, The Right Choice” is used. Directly underneath the slogan, the candidate’s experience is listed, including working as an “Assistant Prosecutor.” Rule 4.1.(A)(9) states that “a judge or judicial candidate shall not knowingly, or with reckless disregard for the truth, make any false or misleading statement.” Based upon this Rule, the Commission determined that the Magistrate cannot use the term “assistant prosecutor” in campaign advertisements since they never served in that capacity. The Commission found it would be a material misrepresentation and leave the public with the mistaken impression that the magistrate has a license to practice law in West Virginia. Therefore, they may not state that they served as an assistant prosecutor but may say that they interned or clerked at the Prosecutor’s Office. |