Recusal: Prosecutor is a Former Student of Judge

September 16, 2002

CJE Opinion No. 2002-9

You are a judge in a District Court division of the Trial Court. You were previously an adjunct professor at a law school. One of your former students is now an assistant district attorney in your county and the District Attorney's office has assigned, or is about to assign, your former student to be the prosecutor in your court. Thus, you will have daily contact with him and will be making decisions on motions, trials, and dispositions in many cases in which he will be representing the Commonwealth. You indicate that the prosecutor attended your law school class on trial practice either three or four years ago. You have not socialized with this attorney since then. Your only contact with your former student has been in court, where he may have appeared before you in a pretrial session in another District Court. On the one occasion when he has appeared before you for trial, you disclosed to defense counsel that the prosecutor had been your student, and you presided over the bench trial after defense counsel indicated that there was no objection to your sitting on the case.

You inquire whether you must disclose your prior teacher/student relationship in every case in which your former student appears. Implicit in your query are the additional questions whether you should offer to recuse upon request, and whether there is any necessity that you recuse. Since the prosecutor will be involved in all criminal cases in your court, that prosecutor could not be assigned to your court if recusal were required.

The pertinent provisions of the Code of Judicial Conduct are Canons 3 (C) and 3 (D), relative to disqualification and remittal of disqualification, and the general provisions of Canon 2 requiring a judge to avoid impropriety and the appearance of impropriety.

As to the latter, Canon 2 (B) provides in relevant part that "[a] judge should not allow his . . . social or other relationships to influence his judicial conduct or judgment. . . . [N]or should he convey or permit others to convey the impression that they are in a special position to influence him."

Canon 3 (C) requires disqualification of judges in proceedings "in which [their] impartiality might reasonably be questioned." Canon 3 (C) (1) sets out the grounds requiring recusal:

(a) personal bias or knowledge of the facts;

(b) prior service as a lawyer in the matter of controversy, or prior association with an attorney handling the matter, or the judge or such an attorney has been a material witness concerning the matter;

(c) financial interest in the matter;

(d) kinship to a party, attorney, witness, or person having a substantial interest in the matter.

This committee has rendered several opinions in the past addressing whether a judge may preside over matters where the judge has a familial relationship with a member of the District Attorney's office. Those relationships implicate the proscription in Canon 3 (C) (1) (d). In CJE Opinion 92-1 we addressed the situation where a judge's father was a prosecutor. In CJE Opinion 01-16, an assistant district attorney was a judge's son. In that opinion, where the son did not practice in the judge's court and had no supervisory role or authority in any of the cases in the judge's court, the committee concluded that the judge did not have to disqualify himself from hearing cases involving that county's District Attorney's office. We have also given advice on presiding on matters involving former partners (CJE Opinion 89-2) and former law firms (CJE Opinion 95-6).

In CJE Opinion 99-9, a judge who was an adjunct professor at a law school asked whether he was required to recuse himself from a law firm's cases, where one of the partners in the firm was a trustee of that law school. In that opinion, the facts indicated that the Board of Trustees was not involved in the day-to-day operations of the law school and that the Dean made the decisions relative to hiring of faculty and negotiation of their employment contracts. Hence, on the facts as presented, the judge was advised that automatic disqualification was not required. The only issue was whether there was a question of appearance of impropriety. The committee concluded that "no reasonable issue of [the judge's] impartiality could be raised solely by reason of an appearance in [the judge's] court by a member of the firm in which a trustee of the law school is a partner."

In CJE Opinion 99-9, quoting from CJE Opinion 89-8 and CJE Opinion 89-2, we said that we are reluctant as a committee to advise judges in making recusal decisions on a case-by-case basis. However, where a general question arises of a type that is apt to recur, and where the objective appearance of partiality may be manifest, the committee will advise a judge seeking an advisory opinion on the subject.

The committee has not squarely addressed the issue of teacher/student relationships, notwithstanding the fact that many judges serve on law school faculties either before or during their tenures on the bench.

The criteria listed in Canon 3 (C) for disqualification contain both subjective and objective features. In general, the question of disqualification is left to a judge's discretion. Commonwealth v. Gogan, 389 Mass. 255, 259 (1983).

None of the express criteria in Canon 3 (C) appears to be implicated in student/teacher relationships, and we would not read into Canon 3 (C) a requirement that all student/teacher relationships automatically mandate disqualification, nor even an obligation to disclose the existence of the relationship, particularly where the attorney is a former student. Some situations, e.g., a student prosecutor or defender appearing before a judge while taking the judge's course, or perhaps a former student who had acted in a particularly close capacity with the judge (above and beyond the ordinary student/teacher interaction), may constitute relationships of a closer kind where either a personal bias or the appearance of a personal bias in favor of (or against) a student would trigger the disqualification provision of Canon 3 (C) (1) (a).

In the event that a judge had such a close personal relationship with a particular student, application of the two part test for recusal outlined in Lena v. Commonwealth, 369 Mass. 571, 575 (1976), would be warranted:

"Faced, then, with a question of his capacity to rule fairly, the judge was to consult first his own emotions and conscience. If he passed the internal test of freedom from disabling prejudice, he must next attempt an objective appraisal of whether this was 'a proceeding in which his impartiality might reasonably be questioned.' S.J.C. Rule 3:25, Canon 3 (C) (1) (a), 359 Mass. 841 (1972)."

The committee, of course, is not in a position to advise a judge on the subjective test. However, based on the facts that you have presented, it appears that the relationship with your former student is so attenuated as to approach non-existence. Consequently, the committee is of the opinion that you need not recuse yourself from hearing this assistant district attorney's cases, nor are you required to disclose to other counsel in any of his cases the fact that the prosecutor at one time was your student.