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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
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