A lawyer's role in the aftermath of the Massey Coal decision.

• Author: Crim, Michael D.
• Position: Judicial disqualification case

This article originally appeared in the February 2010 Professional Liability Committee Newsletter.

"YOU CAN'T HANDLE THE TRUTH ..." This line was belted out in the film "A Few Good Men" by Col. Nathan R. Jessep (Jack Nicholson) in response to a line of questioning by Lt. Daniel Kaffee (Tom Cruise) related to whether Col. Nathan had ordered a "Code Red" resulting in the death of a Marine. The exchange between the two thespians has become the basis of movie lore ... and comedy fodder. Irrespective of which side of the fence you find yourself related to the long-term evaluation of this movie scene, most lawyers can identify with Lt. Kaffee's decision to challenge Col. Jessep at the risk of suffering a potential career ending disaster. Lt. Kaffee's decision, while somewhat contrived and melodramatic, does epitomize what "zealous" representation is meant to encompass.

The act of moving to recuse a sitting trial judge has not historically been an issue that an attorney would likely consider when evaluating his or her obligation to "zealously" represent a client. In fact, recusal motions are sparingly used and have most often been utilized to remove a judge in situations where there is an outright and obvious conflict. An attorney would not likely consider his or her failure to seek recusal as a failure to "zealously" represent the client, nor would an attorney typically consider the possibility of being subjected to a malpractice claim as a result of the decision to move for recusal. All of that changed in June 2009 when the United States Supreme Court announced its decision in Caperton, et al v. A.T. Massey Coal Company. (1)

In Caperton, the United States Supreme Court was called upon to decide whether there had been a constitutional violation of due process when Brent Benjamin, a West Virginia Supreme Court Justice, refused to disqualify himself from participating in an appeal brought by a corporate defendant, which had made substantial contributions to his judicial campaign. The United States Supreme Court ultimately found Benjamin's refusal to disqualify himself to be a Due Process violation and sent the case back to the Supreme Court of Appeals of West Virginia for further consideration without Justice Benjamin participating. (2)

As will be discussed briefly herein below, the Caperton decision created a new legal standard for determining whether a judge's failure to recuse himself would constitute a federal Due Process violation, not based on actual bias, but based on the "probability" of bias. The Caperton standard has also arguably created a new legal malpractice cause of action predicated on an attorney's failure to properly make use of the new recusal standard. Interestingly, this potential new cause of action could be asserted whether the attorney seeks recusal or decides that recusal is inappropriate. The remainder of this article will touch briefly on the history of the Caperton case and raise certain considerations that should be considered by practitioners on a going forward basis.

The Facts Behind the Caperton Case

In August 2002, a West...