Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 03-1

Date Issued: May 16, 2003

Recusal Based Upon Attorneys' Subleasing of Office Building Owned by Judge and a Subtenant Attorney's Family Relationship with Lessee

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry Review Commission and the Supreme Court may in their discretion consider compliance with an advisory opinion by the requesting individual to be evidence of a good faith effort to comply with the Canons of Judicial Conduct provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are substantially the same. Order of the Supreme Court of Virginia entered January 5, 1999.

This page last modified: May 23, 2003

  • Must a judge recuse himself or herself from the cases of attorneys who sublease an office building that is owned by the judge if the lessee has a close familial relationship with one of the subtenant lawyers?

    Answer: No. Under the facts presented, there is no per se disqualification. The Committee advises that the judge should disclose the relevant facts to the parties in any case involving the sublessee attorneys.

  • The judge leases a building to a local businessman who in turn subleases to attorneys, one of whom is the businessman's son. Under the terms of the lease, the right to sublease is not subject to the judge's consent or control. The judge has no responsibility to the sublessee and the primary lessee remains contractually obligated to the judge.

  • In a prior published opinion, this Committee concluded that under Canon 3E a judge may hear the cases of subtenant attorneys in a similar, albeit not identical, situation. Virginia Advisory Opinion 01-07 (July 16, 2001). There, the judge leased his share of an office building to his co-owner and former law partner. It was understood that the judge would not hear his former partner's cases. The judge was not involved in the management of the property, and the former partner's ability to pay the judge what was owed under the lease was in no way dependent upon the financial well-being of the subtenant lawyers. Under these fact-specific circumstances, the Committee concluded that the judge could hear the subtenant lawyers' cases. The judge was advised, however, that, in any cases involving these lawyers, the judge should disclose the relevant facts to the parties so that they could make an informed decision regarding any possible recusal motion.

    The Committee concludes that, under the facts now presented, a judge would not be disqualified per se, so long as he or she is not involved in managing the property and the businessman's ability to pay the judge what is owed under the terms of the lease is not dependent on the continued financial well-being of the subtenant attorneys. Likewise, a judge in this position should disclose the relevant facts to the parties in any case in which such subtenant lawyers are involved.*

    FOOTNOTE
    * The Committee's conclusion would be the same regardless of whether there were a familial relationship between the lessee and any of the subtenant lawyers.

  • Canons of Judicial Conduct, Canon 3E.
    Virginia Advisory Opinion 01-07 (July 16, 2001).