CJEO Informal Opinion Summary No. 2012-003 — Disqualification And Disclosure University Representation Of A Party In A Matter Before A Justice Employed By The University

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144A
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Informal Opinion Summary No. 2012-003
[Posted August 23, 2013]
DISQUALIFICATION AND DISCLOSURE: UNIVERSITY REPRESENTATION
OF A PARTY IN A MATTER BEFORE A JUSTICE EMPLOYED BY THE
UNIVERSITY
The Committee on Judicial Ethics Opinions (CJEO) was asked by an appellate
court presiding justice for an opinion as to what an associate justice’s disqualification and
disclosure duties were, if any, where the associate justice was employed by a university,
and the university, its staff, and students under university supervision, represented a party
appearing before the associate justice. An opinion was also sought as to the presiding
justice’s reporting or corrective action duties, if any.
The committee was specifically asked to address circumstances in which an
associate justice had decided not to disclose or disqualify in a matter pending before the
justice where a clinical program at a university’s law school represented a party and the
justice was employed for compensation by the same university to teach an undergraduate
law-related course.

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The committee concluded that disqualification was not required under canon
3E(4)(c) of the California Code of Judicial Ethics. In the absence of facts showing a
substantive relationship between the justice’s teaching and the law school clinic, the
committee concluded that an aware person would not reasonably doubt the justice’s
impartiality. The committee also concluded that because disclosure is not required for
appellate justices, there was no violation of a duty to disclose. Thus, the presiding justice
had no duty to report or seek corrective action.
In reaching these conclusions, the committee was guided by Stanford University
v. Superior Court (1985) 173 Cal.App.3d 403, decisions from other jurisdictions, and
other persuasive authorities. (Stanford, supra, 173 Cal.App.3d at pp. 407-409; Fairley v.
Andrews (2006) 423 F.Supp.2d 800, 820 (N.D. Ill.); Williams v. Viswanathan (2001) 65
S.W.3d 685, 692 (Tex. App.); U.S. v. Moskovits (1994) 866 F.Supp. 178, 181-182 (E.D.
Pa.); Rothman, Cal. Judicial Conduct Handbook (3d ed. 1997) § 7.73, pp. 381-382.) The
committee noted that the university itself was not a party, nor was the justice’s teaching
opportunity dependent upon the outcome of the appeal, leaving only employment by the
university as a link between the matter and the justice. The committee concluded that the
link between the university and the justice was too remote and unrelated to give a
reasonable person sufficient doubt as to the justice’s impartiality and disqualification was
not required.
In addressing disclosure, the committee noted that although there is no
requirement for disclosure by appellate justices, each justice must decide for himself or
herself whether the facts require disclosure for the purpose of reaffirming the public’s
trust in the integrity and impartiality of the judicial system. (Rothman, supra, § 7.90, at
p. 389.) That decision, like a disqualification decision, must be made solely by the
justice involved. (Kaufman v. Court of Appeal (1982) 31 Cal.3d 933, 937-940.) In the
facts provided, the justice had decided not to disclose the university employment and that
decision did not violate the Code of Judicial Ethics.

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This informal opinion summary is advisory only (Cal. Rules of Court, rules
9.80(a), (e); Cal. Com. Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rule
1(a), (b)). It is based on facts and issues, or topics of interest, presented to the California
Supreme Court Committee on Judicial Ethics Opinions in a request for an opinion (Cal.
Rules of Court, rule 9.80(i)(3); CJEO rule 2(f), 6(c)), or on subjects deemed appropriate
by the committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)).