Ethical Issues Involving Private Judges in Divorces

What Are Private Judges?

The number of family law cases filed in California has become more than our courts can handle on their own. Unlike other court proceedings, divorce litigation doesn’t necessarily end after the court renders judgment. Sometimes divorcees return to court requesting support modifications and other post-judgment proceedings.

The overstuffed dockets were causing divorces to become more protracted, which only exacerbated the problem. In response, California family law courts were given the authority to delegate some of their dockets out to experienced family law attorneys who could act as judges for hire.

Thus, if the parties agreed to hire a private judge (also known as a “temporary judge”), they could expedite their divorce proceedings.

Potential Conflicts of Interest

Because private judges are still practicing attorneys, private judgeships have the potential to create conflicts of interest. Consider the following hypothetical example: An attorney acting as a private judge could preside over the Smith divorce one day, and then later find themselves litigating the Jones divorce under a private judge who happens to be the same attorney litigating the Smith divorce. These attorneys could have unique insight into each other’s practice strategies and litigation techniques. Some may be inclined to start a mutually beneficial relationship, recommending their private-judging services to their own clients and creating repeat business for each other.

Attorney Jill Hersh discussed this issue in her article, “Ethical Considerations in Appointing our Colleagues as Private Judges.” Hersh acknowledges how family lawyers have a unique community, noting:

“Our Bar is small and collegial with the attorneys who litigate and the attorneys who adjudicate, socializing together and participating in the same bar organizations, clubs, seminars, conferences, meetings, study groups, consultations, charitable organizations, boards, vacation meetings, and in some instances, country-home events, and sometimes in the same cases as opposing counsel.”

Judicial Disqualification Procedure

When a potential conflict of interest arises in the context of private judging, it can disqualify the private judge from presiding over a case. Like full-fledged judges, private judges must adhere to California’s Canons of Judicial Ethics.

Canon 6D(5)(a) requires private judges to disclose in writing any information “relevant to the question of disqualification…including personal or professional relationships.” The parties must then waive the potentially disqualifying conflict if they wish to continue their divorce with the private judge. Otherwise, either of the parties may move to disqualify the judge from presiding over their case.

If the private judge believes the potential conflict does not actually disqualify them from presiding over the case, they must either strike the motion on the ground that it is either untimely or legally insufficient. Otherwise, the private judge must file an answer admitting or denying the motion’s allegations. The private judge may not rule on the merits of a motion to disqualify them.

But the private judge cannot simply ignore a motion to disqualify. If the private judge fails to file an answer within 10 days after the motion was filed, they will be “deemed to have consented to his or her disqualification.” Cal. Civ. Proc. Code § 170.3(c)(4).

Hayward v. Superior Court

In a 2016 case, Hayward v. Superior Court, a private judge in a divorce case failed to disclose the fact that she had a mutual private judging relationship with the attorney representing the husband. The wife moved to disqualify the private judge and asked the Court of Appeal to reverse a settlement agreement the parties executed under the private judge’s purview. She claimed that the private judge was biased, imposing one-sided rulings that harshly prejudiced her case while favoring the husband’s attorneys.

The Court of Appeal reprimanded the private judge and reversed the parties’ divorce settlement. The court held that the private judge was disqualified from the moment she failed to adhere to proper disclosure requirements. The court also found that the divorce settlement was tainted by the undue influence of the private-judge’s apparent bias. The court stressed the importance of a private judge’s ethical obligations:

“Unlike permanent judges, temporary judges operate in a context that greatly increased the likelihood of potential conflicts…most who serve as temporary judges simultaneously maintain private law practices, as in this case. Consequently, these lawyer/judges commonly engage in continuing business relationships with lawyers likely to come before the court to which they are appointed—unlike public judges, who are precluded from doing so by the [Canons of Judicial Ethics.]” Hayward v. Superior Court, 2 Cal.App.5th 10, 46 (2016).


While private judges can provide a significant benefit to California’s courts and the practice of family law at large, they must respect their heightened ethical obligations while acting as a judge, and treat potential conflicts of interest seriously. While mutual private-judging relationships may not be inherently evil, private judges must disclose this fact. The Canons of Judicial Ethics demand strict adherence to the written disclosure requirements regarding their private-judging relationships with other attorneys. The private judge may continue presiding over the divorce case after the parties explicitly waive the potentially disqualifying fact in writing.

Consult a Quality Westlake Village Divorce Attorney

At the Law Offices of Jeffrey S. Graff, our lead attorney is dedicated to advocating for the best interests of you and your family. Backed by more than 35 years of experience litigating family law cases, Attorney Graff will work diligently to ensure you receive just and fair treatment in your divorce proceedings, or other family law matters.

Call us at (805) 633-4999 or contact us online to schedule a free consultation with Attorney Graff today!

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