Why Gibson Dunn represented a New York financier for only 16 days
A federal appeals court appears to be making a point about bringing lawyers into a case with the possible goal of forcing the recusal of a judge.
In July 14 order (PDF), the New York-based 2nd U.S. Circuit Court of Appeals struck the appearances of five Gibson Dunn partners, including former U.S. Solicitor General Theodore Olson and Randy Mastro, who was in the news when he was lead author of a report on the New Jersey bridge scandal. Law.com (sub. req.) reports on the two-sentence order and the court’s reference to a 2000 case raising concerns about how late-hired lawyers could cause the recusal of a judge.
Gibson Dunn represented New York financier Lynn Tilton for 16 days before the court issued its July 14 order, according to Law.com. Tilton was challenging the constitutionality of the Securities and Exchange Commission’s in-house judges, but the 2nd Circuit ruled in a 2-1 decision June 1 that it had no jurisdiction in the case. The decision allowed the Securities and Exchange Commission’s case against Tilton to proceed, CNBC reported at the time.
One of the judges in the majority was Robert Sack, a former Gibson Dunn partner. He did not participate in the order striking the appearances of the Gibson Dunn lawyers. A lawyer not affiliated with the firm filed a petition for rehearing on Tilton’s behalf on July 15.
Sack was also a judge in the 2000 case, which also rejected Gibson Dunn’s appearance.
“Once the members of a panel assigned to hear an appeal become known or knowable,” the 2000 order said, “counsel thereafter retained to appear in that matter should consider whether appearing might cause the recusal of a member of the panel. We make no finding as to good faith or intent by the estimable lawyers of Gibson, Dunn. It is clear, however, that tactical abuse becomes possible if a lawyer’s appearance can influence the recusal of a judge known to be on a panel. Litigants might retain new counsel for rehearing for the very purpose of disqualifying a judge who ruled against them.”
The code of conduct for federal judges requires recusal when a judge’s impartiality “might reasonably be questioned.” A judicial ethics advisory opinion says many judges impose their own recusal rules for a certain time period after leaving a law firm, and recommends recusal for at least two years, the Law.com story points out. Sack left Gibson Dunn in 1998.
Gibson Dunn didn’t immediately respond to a request for comment emailed late Friday afternoon.