August 12, 2004
This is in response to your inquiry (03-10) concerning your sibling’s intended affiliation with a law firm on a “part-time of counsel basis”. It is anticipated that your sibling would have no financial interest in the firm and would only receive compensation for matters actually handled.” You seek the Committee’s guidance as to whether recusal is required in the event that law firm appears before you.
We enclose for your consideration Opinions 99-146 (Vol. XVIII), and 95-35 (Vol. XIII), which deal with similar situations. As indicated therein, the determining factor is not whether your sibling has a financial interest in the firm itself, but whether “there is a continuing counsel relationship, evidenced, for example, by a shared letterhead and other indicia rather than merely a retainer interest in occasional discrete, separate cases.” If the former, recusal is required. Opinion 95-35 (Vol. XIII). If, on the other hand, the employment is occasional, part-time, on a per diem basis, neither recusal nor disclosure is required. Opinion 99-146 (Vol. XVIII).
Since it is not entirely clear or certain what the exact nature of the relationship will be, we are at this time unable to express our opinion as to the response that is called for should the law firm appear before you. We trust, however, that the opinions provided will be of assistance.