When must a judge recuse over a personal relationship? ABA issues ethics guidance

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A judge need not automatically recuse or be disqualified if a lawyer or party in a matter before the judge is an acquaintance or friend: However, recusal or disqualification is necessary when the judge is in a close personal relationship with a lawyer or party in a matter, according to a formal opinion released Thursday by the ABA Standing Committee on Ethics and Professional Responsibility.

Formal Opinion 488 interprets the Model Code of Judicial Conduct Rule 2.11, which requires judges to identify situations where their impartiality might reasonably be questioned—an age-old and fluid determination, beyond the specific provisions in Rule 2.11(A)(1)-(6).

“No bright line signals to a judge when a friendship with an attorney has gone from unremarkable to reasonably relevant to a possible motion for disqualification to raising reasonable questions about the judge’s impartiality,” Cynthia Gray of the Center for Judicial Ethics, which is housed at the National Center for State Courts, wrote in the Judges Journal in 2013.

Historically, there have been differing standards for disqualification. Noted legal ethics expert Richard E. Flamm has identified Henry de Bracton as the initial scholar addressing judicial disqualification in his 13th-century treatise Bracton on the Laws and Customs of England. According to Flamm, the common law judicial disqualification standard, derived from early Roman law, allowed a litigant to seek disqualification of a judge “on the basis of even a suspicion of bias.” This could arise from many different causes such as where a party was a “table companion” of the judge or an enemy of a judge’s kinsman. Eighteenth-century British jurist Sir William Blackstone rejected disqualification for such reasons and concluded a judge should be disqualified only for pecuniary interest in a matter. For many years, that was the standard in English courts, and courts in the U.S. followed suit.

The evolution of the judicial disqualification standard in U.S. courts has moved beyond this single financial basis. One might argue that the early Roman law standard “on the basis of even a suspicion of bias” has morphed into the “impartiality could be reasonably questioned” standard that was incorporated in the ABA Model Code of Judicial Conduct. This general standard has been in search of specificity ever since.

The opinion issued by the committee recognizes “that relationships vary widely, potentially change over time, and are unique to the people involved.” As such, the opinion trifurcates judge’s social interactions and relationships into (1) acquaintanceships; (2) friendships; and (3) close personal relationships. These concepts parallel those in New York Advisory Committee on Judicial Ethics Opinion 11-125.

(The opinion does not address social media. Interaction on social media does not itself indicate the type of relationships participants have with one another either generally or for purposes of this opinion.)

Model Code 2.11(A)(1) encompasses the standard of “impartiality might reasonably be questioned.” But, in addition, Rule 2.11(A)(2) specifies situations where “the judge knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is:

    (a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
    (b) acting as a lawyer in the proceeding;
    (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or
    (d) likely to be a material witness in the proceeding.”

The purpose of Opinion 488 is to elaborate on these examples. For example, the opinion notes that a judge must recuse or be disqualified when the judge has or pursues a romantic relationship with a lawyer or party in a matter.

However, other “close personal relationships”—such as amicably divorced individuals who maintain joint custody—require that the judge follow the dictates of Rule 2.11(C), which provides for a remittal of disqualification.

A judge subject to disqualification under this rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If after the disclosure the parties and lawyers agree—without participation by the judge or court personnel—that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.

In essence, Rule 2.11(C) concludes that despite a situation where a judge’s impartiality might reasonably be questioned, the judge may preside with permission of the lawyers and parties if the judge does not have a personal bias or prejudice or personal knowledge of facts in proceeding.

Opinion 488 opines that a close personal relationship is covered by Rule 2.11(A)(2) quoted above, requiring disqualification, while acquaintances do not. As for friendships? That depends on the specific facts.

Dennis Rendleman is the lead senior ethics counsel at the ABA’s Center for Professional Responsibility in Chicago.

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