Discussion
The Nevada Code of Judicial Conduct provides:
A judge shall disqualify himself or herself in a proceeding in which the
judge's impartiality might reasonably be questioned...[Canon 3E(1)]
The rules also provide:
A judge disqualified by the terms of Section 3E may disclose on the record
the basis of the judge's disqualification any may ask the parties and their
lawyers to consider, out of the presence of the judge, whether to waive
disqualification. [Canon 3F]
The Committee believes that in any proceeding where the specific attorneys
representing the judges appear as counsel, that this is a circumstance where
"the judge's impartiality might reasonably be questioned." The attorney
general's office appears as counsel in civil and criminal matters, including
applications for post conviction relief, where the opposing parties might have
reason to question the ability of the court to be fair to both sides because of
their representation of the court in this important matter.
While the judges have been sued in their official capacity and they have no
pecuniary interest in this litigation, the clerk of the court has alleged that
the district judges and their predecessors engaged in conduct to usurp her power
as an elected official which conduct is unlawful under Nevada's laws and
constitution. In order to defend the judges, the designated attorneys general
will undoubtedly be required to meet with the judges to review the allegations
of the complaint and plan defense strategy in a lawsuit that appears to have the
potential to raise strong feelings on both sides. With this background, even
though the judges have been named in their official capacity, the Committee
believes there is a potential that an opposing party may have reason to question
the impartiality of the district judges when facing the two lawyers for the
district judges.
Therefore, the judges of the judicial district are required to disqualify
themselves in any proceeding in which these attorneys appear until this lawsuit
is finally resolved. However, a judge disqualified may disclose on the record
the basis of this disqualification and ask the parties and their lawyers to
consider, out of the presence of the judge, whether to waive this
disqualification [Canon 3E(1) and F].
The Committee believes that the facts in this case are distinguishable from
Reilly v. Reilly, 489A.2d 1291 (Penn. 1985). In that matter, the lawyer
in question represented every judge and justice in the state of Pennsylvania in
a class action seeking increased judicial compensation for all judges. The
Supreme Court of Pennsylvania did not require the judge's attorney to recuse
himself because of the "rule of necessity". The Court held that to require
disqualification would make the attorney forego trial practice in the entire
state of Pennsylvania and the Court held "no lawyer should be compelled to
suffer such a disaster because of his pro bono representation of all of the
judges of Pennsylvania." Reilly, supra at p. 213. The attorneys in
question here are public attorneys whose income will not be affected by the
disqualification of the judges of one of the several judicial districts in this
state.
The "rule of necessity" however does guide the decision of the Committee in
answer to the second part of this request: Are the judges of this district
required to disqualify themselves in any appearance by any member of the
attorney general's office? The attorney general's office is the largest law firm
in this state, with its attorneys litigating matters of all type throughout
district courts of the state of Nevada. There may be some possibility that a
judge's impartiality would be questioned when a deputy attorney general not
involved in the county clerk litigation appears in district court. However, this
possibility is remote and even if present, recusal is avoided because necessity
requires attorneys general unrelated to this case to represent the interests of
the public and the state of Nevada in the courts of the district throughout the
pendency of the instant litigation. It would not be practicable to transfer
every case in a given judicial district to another judge to cure this problem.
"The rule of necessity thus operates as an exception to the requirement of
impartiality, prescribed by the demands of reality." Judicial Conduct and
Ethics, Shaman, Lubet and Alfini (Second Ed. 1995 at Section 4.03 and 4.18).
By this ruling, the Committee hopes to provide guidance as to the minimum
requirement in these circumstances. We leave it to the good judgment of the
district judges to decide whether notification and recusal may be appropriate in
a broader range of matters involving the attorney general's office given the
unique circumstances of a particular matter.
