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Judge not disqualified despite paying parking fees to lawyer

A routine $25 monthly parking charge should not automatically bar a judge from hearing cases involving a lawyer who co-owns the parking space, the Supreme Court of Virginia says.

When the Virginia Judicial Ethics Advisory Committee split on whether rental of a single parking space would create a conflict of interest between a lawyer and a judge, the justices came down on the side of lenience.

The court on May 1 approved Judicial Ethics Advisory Opinion 19-4 saying a judge may hear cases involving a lawyer who co-owns a company that rents a parking space to the judge, as long as parties and other attorneys waive any objection.

The judge had few options for parking, according to the factual scenario. When the judge moved into a new residence, the only secure and convenient option for parking was to rent a space for $25 a month from a limited liability company. The LLC rented spaces for $25 a month on a first come-first served basis as they become available. There was no contract and fees could be paid on intervals chosen by the renter.

The judge later discovered the LLC was co-owned by an attorney who regularly appeared before the judge. The judge asked whether renting the space required the judge to step aside from cases involving the attorney, and whether any such disqualification could be waived.

The majority of the Judicial Ethics Advisory Commission saw little likelihood of a real-world conflict. The judge would not be per se disqualified from hearing the lawyer’s cases, the panel concluded.

The “nature of the payment appears to be a routine, periodic payment of a relatively small sum of money, with no other indications of frequent contract negotiations, dispute, or entanglements,” the committee wrote. “There is also no indication that the business relationship is an effort to curry favor with the judge, or, conversely, to force the judge’s disqualification.”

But the judge would have to disclose the relevant facts to the parties and attorneys who could then waive the judge’s disqualification, the committee said.

A minority of the JEAC disagreed.

“No matter how the judge decides an issue or case involving the attorney, the judge risks being subject to a claim of bias,” the minority wrote. The judge could be seen as giving favorable treatment to a business partner or – conversely – seen as unfairly attempting to show objectivity with an unfavorable ruling, the minority said.

The identity of the minority element of the commission was not disclosed by a spokesperson for the Supreme Court, who cited a provision for the confidentiality of committee proceedings.

The JEAC is made up of six judges, four attorneys and one lay member. Chesterfield General District Judge Pamela O’Berry is the current chair.