JUDICIAL ETHICS OPINION 2010-7

¶1 As a new judge who for 14 years, served as an assistant District Attorney in one county of a multi-county district and filed cases during that time including traffic, felony, misdemeanor, mental health, adult protective services, guardianships, deprived and delinquent cases, the following questions arise.

¶2 QUESTION 1: May I hear cases that I filed and have been involved in if all parties (State, defendant, defense attorney, DHS if applicable and OJA) waive any conflict in writing or on the record?

¶4 QUESTION 2: May I hear cases that I did not file, but may have made some court appearance such as the initial arraignment or jury sounding docket – I would not have been substantially involved in that type of case other than to make a recommendation concerning bond and/or punishment?

¶5 QUESTION 3: May I hear cases in which I did not file nor make any appearance even though they were filed while I was in the DA’s office AND/OR may I hear cases filed by other ADAs in the other counties within my district?

¶6 ANSWER TO QUESTIONS 2 and 3: Yes. The judge must disclose prior involvement and if asked to recuse, should use discretion.

¶7 QUESTION 4: Once one of my filed cases has been pled, may I hear that case if the DA’s office has subsequently filed an application to accelerate or revoke the defendant’s sentence for failure to abide by the rules and conditions of probation?

¶8 ANSWER TO QUESTION 4: Yes, with restrictions. If, after disclosure, recusal is requested, the judge should recuse.

¶9 QUESTION 5: Once one of my cases has pled, may I issue a warrant and/or conduct a willful failure to pay hearing on that case when the defendant fails to pay his files and costs?

¶10 ANSWER TO QUESTION 5: The Judge may issue the warrant. The issuing of a warrant is an administrative duty and would not require notice or waiver, but conducting the hearing and issuing an Order pursuant thereto, is a judicial function which would require both notice and waiver.

¶11 QUESTION 6: Concerning a delinquent or deprived case (since they can last for several years), may I conduct any review on those cases that I filed and obtained an adjudication?

¶12 ANSWER TO QUESTION 6: The inability of a minor to give personal consent requires recusal.

¶13 QUESTION 7: May I call dockets, take announcements and waivers of jury trial or preliminary hearings, but not conduct hearings on the merits concerning cases that I have filed while I was in the DA’s office?

¶14 ANSWER TO QUESTION 7: Yes, these are administrative duties which would not affect the rights of the parties.

DISCUSSION:

¶15 These questions involve the provisions of Canons 2 and 3 of the Code of Judicial Conduct, i.e., "A Judge Should Avoid Impropriety and the Appearance of Impropriety in All the Judge’s Activities" and "A Judge Should Perform the Duties of Judicial Office Impartially and Diligently". We previously stated in Judicial Ethics Opinion 2003-6:

¶16 We call to your attention, the discussion in the American Judicature Society publication entitled "Ethical Issues for New Judges", suggesting that Canons such as Oklahoma Canon 3E(1)(b) requires disqualification when the judge served as a lawyer in the matter in controversy and stating that this applies not only from a specific case in which he or she appeared on behalf of a party, but in any litigation that is in any way related to former representation of a client, and applies no matter how long ago the representation occurred or the amount of advice offered by the judge. It is our opinion that disclosure and waiver on the part of the affected party is sufficient in the instances set out in this Opinion.

Dated: December 28, 2010

/s/Robert E. Lavender

/s/Milton C. Craig