January 24, 2001
Honorable Richard E. Gardner, Jr.
Chancery Judge
Pope County Courthouse
P. O. Box 2691
Russellville, AR 72801
Re: Advisory Opinion 2000-13
Dear Judge Gardner:
You have asked this committee to consider whether it is advisable for your wife to take a job which would require her to solicit business for her employer from various businesses in the area of Russellville. Her solicitations would be under the name of her employer, which provides accounting and bookkeeping services, as well as advice regarding workers compensation insurance and employer-employee relations, taxes and other business related matters. Such advice would not be provided by your wife, but through her employer, a Florida corporation. You would have no connection with the business in any manner.
Where your wife chooses to work is, of course, beyond the aegis of this committee. The Commentary to Canon 4D offers pertinent guidance:
“…a judge should discourage members of the judge’s family from engaging in dealings that would reasonably appear to exploit the judge’s judicial position. This rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification.”
We see no immediate problem in the activities you describe. Whether there are potential conflicts between the work your wife is considering and your judicial duties would depend on circumstances not now available to us. Problems could conceivably arise involving an appearance of partiality and conflicts of interest. If, for example, a business solicited by your wife were an expectant or inchoate litigant or, due to the nature of its enterprise, were frequently involved in cases heard by you, your impartiality may be reasonably questioned.
Canon 3E provides that:
“a judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including instances where (a) the judge has a personal bias or prejudice concerning a party …”
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Honorable Richard E. Gardner, Jr.
January 24, 2001
______________________________
Further, Canon 2 provides that a judge should avoid the appearance of impropriety in all the judge’s activities. However, the mere fact that a judge may have a bias or prejudice does not make the trial judge so biased and prejudiced as to require disqualification in future proceedings. Matthews v. Rodgers, 279 Ark. 328, 651 SW2d 453 (1983). Bias is a subjective matter to be confined to the conscience of the judge. Id. at 331.
Sincerely,
Steele Hays
For the Committee
