CJEO Informal Opinion Summary No. 2012-001 — Employment Of An Appellate Court Justices Spouse As A Staff Attorney In That Justices Chambers

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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. 2012-001
[Posted August 23, 2013]
EMPLOYMENT OF AN APPELLATE COURT JUSTICE’S SPOUSE AS A
STAFF ATTORNEY IN THAT JUSTICE’S CHAMBERS
The Committee on Judicial Ethics Opinions (CJEO) was asked by a presiding
appellate justice for an opinion on whether it is a violation of the California Code of
Judicial Ethics for a justice to have his or her spouse work as the chambers attorney of
that justice, and if so, whether the presiding justice has any reporting duties. An opinion
was also sought on whether it is a violation of the Code for the presiding justice to
approve the timesheets of a chambers attorney of another justice.
The facts provided were that at the time the attorney was selected by the justice
and hired by the court there was no relationship. Within two years a personal relationship
developed, resulting in marriage. After the marriage, the attorney worked in the
chambers of another justice, but later returned to work in the chambers of the justice-
spouse, and remained there for more than eleven years. During that time the Presiding
Justice signed that attorney’s time sheets.

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CJEO opined that, where an intimate personal relationship (including but not
limited to marriage) develops between an appellate justice and one of the attorneys
assigned to his or her chambers, the continued service of the attorney in that chambers
would violate the canons of judicial ethics by failing to avoid nepotism and favoritism,
and/or by creating an appearance of impropriety that tends to diminish, rather than
promote, public confidence in the integrity and impartiality of the judiciary. (Canons 2,
2A, 2B(1), 3(C)(1), and 3(C)(4)1.)
This opinion was based, primarily, on the nature of the working relationship
between a supervising justice and his or her chambers attorney, and secondarily on the
fact that—where there is a marriage—the attorney’s compensation is not insubstantial
and inures directly to the benefit of the judge-spouse’s household. In thus concluding,
CJEO expressly declined to consider whether any employment laws are implicated, or to
consider unique factors that may pertain to a specific employment situation, such as
good faith reliance, advice of counsel, or lack of alternative candidates (e.g., in sparsely
populated areas).
The committee advised that it was within the discretion of the presiding justice to
determine what corrective action would be appropriate, including reporting the matter to
the Commission on Judicial Performance. In exercising that discretion, the presiding
justice was advised to consider all relevant factors. (See, e.g., Cal. Judges Assoc., Formal
Ethics Opinion No. 64 (2009) p. 4).
CJEO concluded there is no ethical dilemma if a presiding justice verifies the time
sheet of another justice’s chambers attorney for administrative convenience, for example,
1 The informal opinion that was issued by the committee in 2012 and this summary
are based on canon 3C(4), which was in effect at the time of the of issuance of the
informal opinion. The committee notes that effective January 1, 2013, the California
Code of Judicial Ethics was amended and former canon 3C(4) was renumbered as canon
3C(5).

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where a Division attorney rotates through the justices’ chambers. If, however, the
presiding justice is not in a position to know whether the attorney was present or absent
on the days represented on the time sheet, this would likely constitute a violation of
canon 3C(1). If a presiding justice were to sign the timesheet of another justice’s
attorney to relieve that justice of his or her administrative duties, an ethical concern might
arise depending upon the reason for doing so. For example, if a justice has failed or been
unable accurately to document the attorney’s work days, the presiding justice should not
be covering for that justice by signing the attorney’s time sheet, but should, instead, be
addressing the justice’s administrative competence or integrity.
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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)).