When should counsels disclose judges' conflicts? Responsibilities addressed in new ABA ethics opinion
If a lawyer knows or should know information in a court proceeding that would likely warrant a judicial disqualification, they have an obligation to disclose it, even if the judge doesn’t, according to an ethics opinion released Wednesday by the ABA.
Caselaw holds that lawyers have an overarching duty of candor to the courts, according to Formal Opinion 522, published April 8 by the ABA’s Standing Committee on Ethics and Professional Responsibility.
“Judges are expected to raise recusal questions themselves,” according to the opinion, citing Rule 2.11 of the ABA Model Code of Judicial Conduct.
However, if the judge fails to do so, the obligation extends to attorneys under Model Rule 8.4(d) of the ABA Model Rules of Professional Conduct, which prohibits attorneys from engaging in conduct “prejudicial to the administration of justice.”
However, an attorney’s obligations to disclose information that might require a judge to recuse themselves is tempered by the attorney’s duty of confidentiality under Model Rule 1.6, which prohibits revealing client information without their informed consent.
The formal opinion lists four illustrations, which focus on prior employment connections, campaign contributions, a spouse’s law firm involvement and a counsel’s business relationship with a judge’s family member.
For example, an attorney may represent a party in a post-conviction proceeding and discover that the judge had earlier been a supervisor of the prosecutor in the underlying criminal case. This would require the judge to recuse themself from the post-conviction proceedings.
Similarly, an attorney may discover that their client previously participated actively and financially in a judge’s recent reelection campaign. The attorney would have to alert the judge of this information.
The information ordinarily should be disclosed to the judge themself with notice to the opposing counsel.
“In other cases, disclosure to the chief judge or other designated administrative authority may be warranted depending on the nature of the potential conflict,” the opinion reads.
An April 8 press release from the ABA is here.
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