Recusal: Attorney is Former Client of Judge
January 15, 2004
CJE Opinion No. 2004-1
You are a judge in the Probate and Family Court Department, and you have asked the committee for advice on a specific matter involving recusal. The facts you explain are as follows. (1)
A lawyer (attorney A) appears before you regularly. Before your appointment to the bench several years ago, you represented attorney A in his divorce case. Attorney A had initially filed for divorce pro se and then subsequently consulted you and paid you a retainer. You filed an appearance in behalf of attorney A in the Probate and Family Court. Attorney A and his spouse eventually reconciled and remain together. You do not indicate whether the case remains open or is closed or inactive. No return of service on the spouse is on file in the papers of the case. You refunded most of the retainer.
Attorney A has reported to you that another lawyer (attorney B) has spoken to him and asked him how he could appear before you now that you are a judge, since he was represented by you in his divorce case. You explain in your letter that, while in private practice, you represented several lawyers in various counties and also the spouses of lawyers in divorce actions. Your analysis is that your prior representation causes no partiality in favor of any lawyer you represented or against any lawyer whose spouse you represented.
You are requesting the committee's assistance on the question whether you should recuse yourself from attorney A's cases. You have not expressed whether you intend to respond to attorney A or to attorney B.
Your query implicates Sections 2 B and 3 E of the Code of Judicial Conduct. Section 2 B provides in relevant part:
"A judge shall not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."
Section 3 E, derived largely from the provisions of former Canon 3 (C) (1), governs disqualification and provides in pertinent part that:
"(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
"(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer."
Additional subsections of Section 3 E require disqualification if the matter is one in which: the judge served as a lawyer in the matter in controversy; an attorney with whom the judge was formerly associated worked on the case while the judge was in the practice; the judge may be called as a witness; the judge has personal knowledge of disputed evidentiary facts of the case; or the judge or members of his family or household or relatives within a degree of kinship have an interest in the case. See Section 3 E (1) (b)-(h).
The commentary to Section 3 E states that the section requires disqualification "whenever the judge's impartiality might reasonably be questioned, regardless of whether any specific rules in Section 3 E (1) (a) through (h) apply." (Emphasis added)
The committee has not previously addressed the precise issue you raise -- that is, whether your prior attorney-client relationship with a lawyer or a lawyer's spouse in an adversarial proceeding precludes your presiding over that lawyer's cases in your court. This is so even though it is certainly not unheard of for a judge to have had lawyers as clients in his or her former practice. In prior opinions, the committee has expressed reluctance to advise judges in making recusal decisions on a case by case basis. See, e.g., CJE Opinion 2002-9, citing CJE Opinions 99-9, 89-8, and 89-2. However, the committee has said that "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."
In general, the question of disqualification is left to the judge's sound discretion. Commonwealth v. Gogan, 389 Mass. 255, 259 (1983). Accordingly, in CJE Opinion 89-2, the committee advised that there was no across the board disqualification from cases in which a judge's former partner would be called as an investigator to testify before the judge, where the investigation did not occur while the judge and the investigator were law partners. Instead, it was left to the judge to consult his own emotions and conscience to determine whether he was free from disabling prejudice and, if so, to then attempt an objective appraisal of whether his impartiality might reasonably be questioned. See Lena v. Commonwealth, 369 Mass. 571, 575 (1976).
The committee also has opined on whether a judge may preside over cases handled by an attorney who is the judge's former law school student, and has concluded that none of the criteria for disqualification set out in the prior Canon 3 (C) implicates student-teacher relationships; nor would the existence of such a former relationship require disclosure. CJE Opinion 2002-9. The committee noted that in some instances the relationship might have been particularly close, such that a personal bias or the appearance of personal bias might trigger the disqualification provision. Id. The committee said if the relationship were of a close personal kind, beyond the ordinary student-teacher relationship, then the application of the two part test for recusal outlined in Lena v. Commonwealth, supra, should be followed.
While the Code is careful to set out with specificity certain categories of relationships and former relationships where disqualification is required, or where disclosure and remittal of disqualification is required, there is no express provision governing a judge's hearing matters where a former client is counsel in the case. The committee is of the opinion that the analysis set out in CJE Opinion 2002-9, for former students and teachers, applies equally as well in your situation.
Obviously, you could do nothing as a judge in connection with a case in which you filed an appearance as an attorney, whether that case is pending in your court or any other court. Your judicial action in such a case would be squarely prohibited by Section 3 E (1) (a). You also have a continuing duty of loyalty to your former client and an obligation to keep confidential his or her communications to you within the course of the representation.
In sum, the committee recommends that you apply the two pronged test in Lena v. Commonwealth, supra. It appears from your letter to the committee that you have already engaged in the first part of the Lena analysis, and you have "consult[ed] [your] own emotions and conscience" and have, in your view, "passed the internal test of freedom from disabling prejudice." The issue then is whether your impartiality has been reasonably questioned. On the facts you have reported to the committee, it seems highly doubtful that your representation of attorney A could produce a reasonable doubt about your impartiality. Nevertheless, in light of the fact that your impartiality has already been questioned impliedly by attorney B's asking how attorney A could appear before you, you should scrutinize this matter carefully and objectively. Among other things, you should ask yourself whether your relationship with attorney A is a particularly close one, either socially or professionally, beyond the former attorney-client relationship, and whether your relationship with attorney A prior to your appointment to the bench might be qualitatively different from your relationship with other attorneys in the community who now come before you.
The committee is, of course, unable to advise you on the subjective aspect of the Lena test. Your description of your prior relationship with attorney A in a concluded matter does appear to be quite limited. If you conclude that your impartiality was not reasonably questioned, and accordingly decide that recusal is not required, then you may conformably with the Code of Judicial Conduct continue to preside over cases being handled in your court by attorney A, since there is no express prohibition in the Code barring your presiding over matters in which your former client appears as counsel to a party. Moreover, should you come to that conclusion, you need not disclose your prior representation of attorney A to other counsel who come before you in cases where attorney A is representing one of the parties.
1. You have also asked a more general question as to how you should handle certain similar situations that may arise in the future. The committee respectfully declines to respond to that portion of your request, which is anticipatory in nature. See Rule 3 of the Rules of the Committee which prohibits the committee from giving opinions on queries that are hypothetical.