Ethical Obligations Requiring Judicial Recusal

• Author: Josephine M. Bahn
• Pages: 7-7

Published in Litigation News Volume 46, Number 1, Fall 2020. © 2 020 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

he ABA Standing

Committee on Ethi cs and

Professional Responsibility

has issued an opinion address-

ing when judge s are required

to recuse themselve s from a case

because of fam ilial or personal rela-

tionships with one o f the parties. In

doing so, the comm ittee analyzed

the ABA’s Model Code of J udicial

Conduct Rul e 2.11. The committee

determined that j udges are best

suited to determine whether recusal

is necessar y. Each decisio n is fact-

based and relie s on the individual to

determine if a mater ial relationship

exists to warrant eith er disclosure

or recusal. AB A Section of Litigation

leaders say the r ule interpretation

serves as a remin der to judges to

maintain compliance with profes-

sional conduct rules.

In Formal Opin ion 488, the com-

mittee describ ed three relationships

between judg es and lawyers or other

parties to assist judges in evaluating

ethical obligations those relationships

may create under Rul e 2.11. The three

categories are acquaintanceships,

friendship s, and close personal rela-

tionships.

Acquaintanceship. The committee

found that judg es are not required to

recuse themse lves or even disclose

the relationshi p if the lawyer or party

is an acquainta nce. Merely going to

the same house o f worship, gym, or

civic organizatio n is not sucient

to rise to the level of disclosu re or

recusal. The co mmittee further noted

that even having previou sly served as

cocounsel with a law yer before tak-

ing the bench is n ot sucient to rise

above this standard.

Friendship. The committee rea-

soned that var ying degrees of friend-

ship imply a greate r degree of anity,

however. It found that casua l friend-

ships, where you m eet for the occa-

sional coee or have the occasional

catch-up call , are much dierent than

Ethical Obligations Requiring

Judicial Recusal

those where a judg e and lawyer or

party routin ely spend time together,

vacation togethe r, or have a mentor-

mentee relation ship. The committee

opined that onl y situations where the

judge’s friend ship with the lawyer or

party may cal l into question his or her

impartiality require disqualif‌ication.

Personal Relationship. The com-

mittee found that p ersonal rela-

tionships beyond friendship could

implicate Rule 2 .11. Specif‌ically, the

judge may be roman tically involved

with or desire a roman tic relationship

with a lawyer or par ty; the judge and

lawyer or part y may be amicable ex-

spouses; or the j udge might play a

signif‌icant rol e in the lawyer’s or par-

ty’s child’s life . Here, the committee

reasoned that a d esire for a roman-

tic relationship o r ongoing romantic

relationship re quired recusal, but that

other intimate or personal relation-

ships with a lawyer or p arty might

only require disc losure. The judge

must consider t he individual circum-

stances of the relationship.

The committee wa rned against

using relationships between judges

and lawyers or pa rties as a method

of forum shoppi ng, thus creating an

advantage in litig ation. Noting that

judges should look at each relation-

ship and set of fac ts before making a

determination on whether to disclose,

recuse, or take no a ction, the commit-

tee reiterated that eac h situation is

dierent, and each decision depends

entirely on the circu mstances.

Section of Litiga tion leaders

applaud the committee’s guidance.

By taking a mode rate approach, the

committee diverg ed from most juris-

dictions that “en trust judges to make

the determination on disqualif‌ication

but provide very lit tle guidance on

when disqualif‌ication is warranted.

Formal Opinio n 488 attempts to cre-

ate some structu re,” explains Michael

S. LeBo, Newp ort Beach, CA,

cochair of the Sec tion’s Professional

By Josephine M . Bahn, Litigatio n News Associate Editor

Liability Litigation Commit tee.

“Now there may be sm all towns

where there is onl y one judge and the

judge knows everyon e.And in today’s

social media wor ld, a judge may

have lots of ‘frie nds’ that are not that

close.Avoiding the ap pearance of

impropriety re mains a tried-and-true

standard, a nd every judge is obliged

to evaluate each case ,” opines John

M. Barkett, M iami, FL, cochair of the

Secti on’s Ethic s & Professionalism

Committe e.

By taking a mode rate approach,

the committee “gave inf ormation on

how to interpret variou s relation-

ships in which jud ges should recuse

themselves or disclose relationships,”

agrees Emily J. K irk, Ontario, CA,

cochair of the Sec tion’s Solo & Small

Firm Committee , without boxing

them into a one-size -f‌its-all standard.

RESOURCES

Dennis Ren dleman, “When m ust a judge

recuse over a per sonal relationship? ABA

issues ethic s guidance,” ABA J. (S ept. 5,

2019).

“ABA issues judge s new guidance on

relationships and recusals,” ABA News

(2019).

Digital versio ns of all Ethics stories,

including links to resources and

authorities, a re available at http://bit.ly/

LN-ethics.

AMERICA N BAR ASSOCIATION FALL 2020 • VOL. 4 6 NO. 1 | 7