Family and Other Relationships

A relative's connection to a case can disqualify a judge whether or not the relative is a named party. Rule 2.11(A)(2) requires disqualification when the judge knows that the judge, the judge's spouse or domestic partner, a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person holds one of four listed roles in the proceeding.¹ The general directive of Rule 2.11(A) forms the first tier of the disqualification standard, and the circumstances enumerated after it form a second tier of recurring scenarios in which disqualification is automatic. Rule 2.11(A)(2) is one of those scenarios.²

The rule's first operative word is knows, and it sets the trigger. The ground applies only when the judge knows of the relative's connection to the case, so a judge who is unaware that a covered relative is a lawyer, officer, or witness has not met it. The requirement matters because the circle is wide: it reaches relatives the judge may seldom see, and a relative can take a role in a case without telling her. The economic-interest ground in (A)(3) opens with the same word,³ while the general directive asks a different question, whether the judge's impartiality might reasonably be questioned.⁴ A problem that leaves the judge in the dark therefore raises a knowledge question before it raises any question about the family tree.

Beyond knowledge, the ground has two elements, and a problem triggers it only when both are present. The first is the family circle, which fixes whose connection to the case counts. The second is the role, which fixes what the covered person must be doing in the proceeding. A family tie without a listed role does not trigger the rule, and neither does a listed role held by someone outside the circle. Such a person is not left unaddressed, because the general directive still reaches a close personal relationship when the circumstances make the judge's impartiality reasonably questionable.⁵ We take the circle first and the roles second.

Covered Relatives

Rule 2.11(A)(2) draws the family circle in four layers, and applying the rule starts with placing the person in the case in one of them.⁶ The layers run outward from the judge:

The judge herself, to whom the listed roles apply as they apply to everyone else in the circle.
The judge's spouse or domestic partner, whom the rule treats alike at every point.
Any person within the third degree of relationship to the judge or to the judge's spouse or domestic partner, so that the spouse's side of the family counts exactly as the judge's own side does.
The spouse or domestic partner of any person in the third layer.

Counted degree, not affection, draws the circle. A judge estranged from her sister and a judge devoted to hers are treated alike, because the rule asks how far the sister stands from the judge on the family tree and ignores how the two feel about each other. Marriage extends the circle by one step: the husband of the judge's niece is inside it although he is related to the judge by marriage alone. The rule lists these family connections in advance so that no one has to argue about appearances each time a relative surfaces in a case.⁷

The word degree calls for a counting method, and the method comes from the civil law. A definitions provision quoted in Papa v. New Haven Federation of Teachers states that the degree of relationship is calculated according to the civil law system.⁸ That method counts steps along the family tree. Start at the judge, or at the judge's spouse when the relative sits on the spouse's side. Count each step up to the nearest ancestor shared with the relative, then each step down to the relative; the total is the degree. The method yields one answer for each relative, so two judges looking at the same family tree reach the same count.

The civil-law count sorts the relatives who matter most on exams this way:

In the first degree are parents and children, each one step from the judge.
In the second degree are grandparents and grandchildren, two steps in a straight line, and siblings, who take one step up to the shared parent and one step down.
In the third degree are great-grandparents and great-grandchildren, and also aunts, uncles, nieces, and nephews. An aunt takes two steps up to the shared grandparent and one down; a niece takes one step up to the judge's parent, one down to the judge's sibling, and one more down to the sibling's child.

A first cousin takes two steps up to the shared grandparent and two down. Four steps place the cousin one step outside the boundary.

The spouse's side of the family is counted from the spouse's position. The spouse's brother stands two steps from the spouse, so he is inside the circle, and so are the spouse's niece, aunt, and grandparent. The last layer needs no count: it reaches the spouse or domestic partner of anyone already inside, such as the husband of the judge's niece or the wife of the judge's brother. That layer extends one step only. A niece's husband is covered; his brother is not.

A relative past the third degree who is not married to a covered person falls outside the specific ground. A blood relative too remote to make the list does not, on the blood tie alone, call the judge's impartiality into question. The general directive reaches that relative only when additional circumstances, such as a close personal relationship, are present.⁹

The (A)(2) circle also differs from the family list in the economic-interest ground. Subsection (A)(3) names the judge, the spouse or domestic partner, a parent, a child, and any other family member residing in the judge's household.¹⁰ The older canon language quoted in City of Bessemer v. McClain drew a shorter list: the judge, a spouse, or a minor child residing in the judge's household, together with any other interest the outcome could substantially affect.¹¹ A sibling who lives elsewhere sits inside the (A)(2) circle and outside both lists, so the circles should be learned separately, a point the economic-interest material below develops.

Exam Analysis Steps

Because the circle is built from a count plus an extension for marriage, it is best run in order, with the count done before any question about the relative's role. The steps are these:

Identify the person whose tie to the judge is in question and the role that person holds in the case, because the circle matters only when a listed role is held.
Ask whether the person is the judge, the judge's spouse or domestic partner, or a blood relative of either of them, noting which side of the family the relative belongs to.
For a blood relative, count the steps up to the shared ancestor and down to the relative, starting from the judge or from the spouse on the spouse's side, and treat a total of three or fewer as inside the circle.
For anyone else, ask whether the person is the spouse or domestic partner of someone already inside, since that person is covered without a count.
Confirm that the judge knows of the person's role, and if the person is outside the circle, turn to the general directive and ask whether a close personal relationship or other added circumstance makes the judge's impartiality reasonably questionable.

Step three is the heart of the analysis, and it is exact: a total of three or fewer is inside, a total of four is outside, and no sliding scale reflects how the judge feels about the relative.

Disqualifying Roles

A covered relative triggers the ground only by doing something in the case, and Rule 2.11(A)(2) names four things. The judge must disqualify when she knows that the covered person is a party or an officer, director, general partner, managing member, or trustee of a party; is acting as a lawyer in the proceeding; is a person with more than a de minimis interest that could be substantially affected by the proceeding; or is likely to be a material witness in the proceeding.¹⁴ The four roles are worth holding by name:

(a) a party, or an officer, director, general partner, managing member, or trustee of a party;
(b) a lawyer acting in the proceeding;
(c) a person with more than a de minimis interest that could be substantially affected by the proceeding;
(d) a person likely to be a material witness.

Roles (a) and (b) put the relative on the litigants' side of the case. When the covered person is a party, the judge's ruling decides whether a family member wins or loses. The rule extends that concern to the people who run a party that is an organization: an officer or director steers a corporation, a general partner or managing member steers a partnership or limited liability company, and a trustee manages the assets of a trust. A relative acting as a lawyer stands in a different position, because the judge must rule on that relative's motions and weigh that relative's arguments. The role carries no condition about how the lawyer is paid. Acting as a lawyer in the proceeding is enough.

Roles (c) and (d) reach relatives who are neither litigants nor advocates but whose stake or testimony bears on the outcome. The interest role carries two filters that keep it from sweeping in every remote connection: the interest must be more than de minimis, and it must be one that the proceeding could substantially affect.¹⁵ The economic-interest material later in this chapter develops both thresholds. The role matters most for relatives who sit inside the (A)(2) circle but outside the household-based list in (A)(3), such as a sibling who lives in another city, because that list does not reach the sibling's stake.¹⁶

The witness role is the family counterpart of the judge's own material-witness ground in (A)(6)(c). A judge asked to weigh the credibility of a spouse or sibling on whom the case depends sits closest to the person whose account she must assess.¹⁷ Because a relative's testimony lies ahead, the rule asks whether the relative is likely to be a material witness; the judge's own role is judged by what she did before, so the rule asks whether she was one. As elsewhere in (A)(2), the judge must know of the role, and a person outside the family circle who holds one of these roles falls to the general directive.

A witness close to the bench raises the same concern outside the family setting. When a trial judge's law clerk testified that he had visited the defendant's store after a rainstorm and seen a puddle on the floor, the court of appeals vacated the judgment in the exercise of its supervisory power, even though the judge had repeatedly cautioned the jury not to give the testimony special significance. The court stressed that the clerk's duty, as much as the judge's, was to avoid contacts outside the record that might affect the outcome.¹⁸ The vacatur rested on supervisory power, a reminder that connections outside the list can still matter.

Both results come straight from the text. The only questions are whether the person sits inside the circle and whether the role is listed; the judge's sincere confidence in her own fairness never enters.

The federal statute follows a similar pattern. In Morelite Construction Corp. v. New York City District Council Carpenters Benefits Fund, the Second Circuit applied the parallel list in 28 U.S.C. § 455(b)(5), which reaches a person within the third degree of relationship to the judge or the judge's spouse, and found it clear that the arbitrator, Campbell, would be disqualified under those rules.¹⁹ State versions vary in wording, so the text of the governing rule controls.

A role missing from the list is analyzed differently, and ordinary employment is the usual example. The list covers roles, such as officer and lawyer, in which a relative's stake or influence is direct. A relative in an unlisted role falls to the general directive, which the list illustrates without exhausting.²⁰ Leaving employment to the general directive avoids an overbroad automatic rule: if employment were a listed role, a judge would have to step aside in every case involving a large employer where any relative worked, from the mailroom to the executive suite. The general directive lets the facts that carry the risk decide, namely the relative's rank, influence over the party, and exposure to the result.

Hewlett-Packard Co. v. Bausch & Lomb Inc. shows the general directive at work on a judge's son employed by a litigant. The court treated the son's employment as "merely one factor to consider" that "does not alone mandate disqualification."²¹ Other facts mollified the situation. The son was a Materials Handling Supervisor in a non-management position without a policymaking role, one of 83,000 employees, at a plant not involved with X-Y plotters, and a judgment against the company would neither affect his employment status nor his financial interest.²² The Model Rule sorts the same facts in the same way. The son was not a party or an officer, he was not a lawyer, he held no interest the case could substantially affect, and nothing suggests he would testify, so the list was silent and the question became whether the judge's impartiality might reasonably be questioned.

An employee relative whose job or pay the outcome could substantially affect is a different matter, because that relative holds an interest within role (c), and the interest, not the employment, supplies the listed role.

Exam Analysis Steps

Because the ground turns on what the covered person is doing in the case, it is best run by sorting the role before asking any question about appearances. The steps are these:

Place the person inside the family circle, and confirm that the judge knows of the person's connection to the case.
Identify what the person is actually doing in the proceeding, whether that is litigating, running a party, arguing the case, holding a stake in the result, or likely testifying.
If the role matches one of the four listed roles, treat disqualification as required without asking whether the judge feels able to be fair, remembering that the interest role requires more than a de minimis interest that the proceeding could substantially affect.
If the role is not listed, as with ordinary employment, apply the general directive, treat the role as one factor, and ask whether the relative's rank, influence, or exposure to the outcome makes the judge's impartiality reasonably questionable.

Step two does the sorting. The usual exam error stretches a listed role to cover a neighboring connection, such as treating a relative who merely works for a party as an officer of that party. A fact like that belongs at step four, where it is weighed with everything else and does not, standing alone, decide the question.