Judicial Bias May Implicate Lawyer's Ethical Obligations

• Author: Kelso L. Anderson
• Pages: 6-6

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.

judge’s expressio n of bias to-

ward a litigant necessarily im-

plicates judici al canons pro-

hibiting such con duct. But,

according to ABA Se ction

of Litigation lead ers, such conduct shou ld

also prompt coun sel for the aected liti-

gant to consider hi s or her ethical duty ob-

ligations to act competently and diligently

toward representing th e client. Section of

Litigation leade rs cite the decision in Real

State Golden Investme nts, Inc. v. Larraín as

a cautionar y tale in this regard.

In a per curiam ru ling, a Florida appel-

late court in Real S tate Golden granted

the petitioners ’ writ of prohibition seeking

to disqualify a tr ial judge after the judge

made comments during oral arguments

on a motion to interven e. During the hear-

ing, the trial jud ge had preemptively de-

nied a motion to stay the p leadings, de-

spite the fact that th e petitioners had not

f‌iled or even sugge sted they would f‌ile

such a motion. Th e exchange between the

trial court an d counsel for the petitioners

went as follows:

Court: So, it’s denied and Motion to

Stay, denied.

Counsel: There was no Motion

for Stay.

Court: There will be. You’re going to

appeal this, right?

Counsel: Probably.

Court: Okay. So, I mean, I expect it

because everything gets appealed.

Counsel: Correct.

Court: For this case, anyway.

Counsel: You know, Your Honor,

there has only been one appeal so

far in this six-year case.

Court: Okay. Maybe I am thinking of

other cases.

Counsel: I think so.

Court: Again, I get a lot of appeals. But

then again, this is a very litigious

world. Okay. If there is an appeal,

I don’t think there’s a reasonable

chance of success on appeal now

that we have conducted this full

analysis and identif‌ied the dierent

Judicial Bias May Implicate Lawyer’s

Ethical Obligations

issues and dierent claims and

claims for a positive relief, not just

defenses. So, draft up an order

and we’ll see what happens.

The petitioner s sought to disquali-

fy the trial jud ge based on the forego-

ing exchange. Co ncluding that the pe-

titioners had an “objectively reasonable

fear they would not re ceive a fair trial,”

the appellate cou rt quoted law for the

proposition that “a judge’s announced

policy or predi sposition to rule in a par-

ticular manner is grounds for disqual-

if‌ication.” Th e court also cited law for

the principle th at a judge may not pre-

judge a case tho ugh he or she may

“form mental impressions and opinions

during the cour se of the case.” Finally,

the court concl uded that recusal is

proper where a tria l judge expressed ju-

dicial bias, as h ere.

Section lead ers conclude that the

trial court als o violated Model Code of

Judicial Con duct Rules 1.2, 2.2, and 2 .3.

“ABA Model Code of Ju dicial Conduct

applies to all ful l-time judges,” arms

John M. Bar kett, Miami, FL, cochair of

the Section’s Ethic s & Professionalism

Committe e. “The disp osition of a mo-

tion that has not yet be en f‌iled is the

paradigm of jud icial bias and preju-

dice,” he concludes.

Agreeing with Bar kett that Rules

1.2, 2. 2, and 2.3 were violate d in Real

State Golden, Jean ne M. Huey, Dallas,

TX, cochai r of the Web Content

Subcommitte e of the Section’s Ethics &

Professionalism Committee, reminds at-

torneys that “it is not always i mproper

for a judge to talk ab out case manage-

ment with counsel .” Here, however, the

trial judge “aba ndoned the neutrality re -

quired by his oce to ma ke rulings only

on what is before him ,” Huey observes.

The judge’s cond uct required

counsel for the ag grieved litigant to

consider coun sel’s ethical obligations

to the aggrieved clien t, according

to Huey. Model Rules of P rofessional

Conduct Rul e 1.1 and 1.3—which

By Kelso L. Anderso n, Litigation News Associate Editor

require a lawyer to rep resent his or her

client competently and diligently—were

triggered by the jud ge’s conduct, Huey

asserts. S he opines that the trial court ’s

message to coun sel from its ruling was

that the “f‌ix was in” a gainst counsel’s

client, “so don’ t bother doing your job

since it will come to nau ght.”

Huey emphasizes th at “if the lawyer

is intimidated into in action by this kind

of judicial misco nduct, the lawyer may

be robbing the cli ent of the client’s right

to competent and diligent representa-

tion under ABA M odel Rules 1.1 and 1.3 .

A lawyer’s duty of co mpetence and dili-

gence is magni f‌ied in situations of judi-

cial miscondu ct because of the signif‌i-

cant risk of harm to th e client and even

the public,” sh e opines.

Huey advises law yers to consider a

three-pronged approach to dealing with

potential judici al misconduct: (1) Know

the rules concer ning remedies for judi-

cial miscondu ct in the courts in which

one practices ; (2) do not wait for judicial

misconduct to o ccur before learning the

appellate or recu sal process in the juris-

dictions in whic h one practices; and (3)

ensure any questi onable conduct by the

judge is on the reco rd.

RESOURCES

State v. Dixon, 217 S o. 3d 1115 (Fl. Dist. Ct .

App. 2017).

Gonzales v. Go ldstein, 633 So. 2d 118 3 (Fl.

Dist. Ct. App . 1994).

Jannis E. Goodnow, “Adverse Ruling s

Insucien t to Show Judicial Bias ,”

Litigation News (July 8, 2 014).

Jannis E. Goodnow, “Investigating a

Juror’s Clai m of Racial Bias,” Litigation

News (July 18, 2013 ).

6 | S ECTION OF LITIGATION

ETHICS STRU GGLES IN THE LEGAL WORL D