Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 00-5

Date Issued: July 17, 2000

Whether a Judge Who Holds Stock in a Publicly Held Corporation Must Recuse Himself/Herself When that
Corporation is a Party

ISSUE

Must a judge who holds one percent (1%) or less of the outstanding stock in a publicly held corporation recuse himself/herself in cases in which that corporation is a party?

DISCUSSION

This question would have routinely been answered in the affirmative some years ago. Virginia's Canons of Judicial Conduct effective January 1, 1999, however, have changed significantly the definition of disqualifying financial interests with respect to modern day investment practices.

The most direct reference in the Canons to this subject is found in Canon 3 E, which reads, in pertinent part:

E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(c) The judge knows that he or she, individually or as a fiduciary, has an economic interest in the subject matter in controversy or in a party to the proceeding or has more than a de minimis interest that could be substantially affected by the proceeding;

(d) The judge (iii) is known by the judge to have more than de minimis interest that could be substantially affected by the proceeding;

Former Canon 3 C (1) provided, in contrast, that a judge should "abstain from performing or taking part in any judicial act in which his personal interests are involved." Obviously when one owns stock, even a single share, in a corporation, regardless of its size, he or she has a "personal interest" in that entity. The committee's advice today, however, does take into consideration the extent of the holding, as do the Canons.

The majority of published opinions from other states require recusal if the judge owns as little as one share of stock in any corporation before the court. 1 Each of these opinions interpreted more specific and restrictive canons than those of Virginia.

The Arkansas Judicial Ethics Advisory Committee considered a similar issue under canons almost identical to those of Virginia. Arkansas considered whether a one-third interest in an estate owning shares of an equity fund, which held 1000 shares of AT&T stock, was a disqualifying interest. The Arkansas canons as quoted in the opinion defined "de minimis" as "an insignificant interest that could not raise reasonable question as to the judge's impartiality." The committee also cited the Arkansas definition of "economic interest" which is identical to the language in Virginia's commentary to Canon 3 E.(2):

"Economic interest" denotes ownership of a more than de minimis legal or equitable interest.

Noting that AT&T is one of the largest corporations in the world with over a billion outstanding shares, the Arkansas committee advised the requesting judge:

It would take quite a stretch of the imagination to think that your decision concerning the franchise tax or fee in an Arkansas city could affect the value of the stock of AT&T and consequently the value of this fund.

The committee is of the opinion that the mere ownership of one percent (1%) or less of the outstanding stock in a publicly held corporation is usually a de minimus interest and does not require the disqualification of a judge in a case involving that corporation. The committee cautions that often the issue of recusal implicates several considerations, any of which might require disqualification. The stock owned by a judge may be of such significance to him, regardless of its de minimis value when viewed in light of the size of the corporation, that recusal is warranted. Likewise, judges should be conscious that the public might view stock ownership as a disqualifying interest. Nevertheless, judges should not use obviously de minimis stock holdings as a means to avoid the trial of cases. If stock ownership results in a judge's frequent recusal, he should divest himself or herself of such stock:

A judge shall manage the judge's investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification.

Canon 4D(4).

Judges should consider seriously all reasons advanced for recusal, keeping in mind their obligation to be available to handle the caseloads of their courts.

FOOTNOTES

1See, for example, Alabama Judicial Inquiry Commission Opinion 86-249 (February 4, 1986); Georgia Advisory Opinion 76 (December 6, 1985); Kentucky Judicial Ethics Opinion JE-56; and New York advisory Committee on Judicial Ethics Opinion 89-36 (April 4, 1989).

REFERENCES

Canons of Judicial Conduct, Canons 3E, and 4D.

Canons of Judicial Conduct (effective until July 1, 1999) Canon 3C.

Alabama Judicial Inquiry Commission Opinion 86-249 (February 4, 1986).

Arkansas Judicial Ethics Advisory Committee Opinion 94-8.

Georgia Advisory Opinion 76 (December 6, 1985).

Kentucky Judicial Ethics Opinion JE-56.

New York Advisory Committee on Judicial Ethics Opinion 89-36 (April 4, 1989)

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry and Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry and 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: July 26, 2000