Recusal from Ongoing Litigation

July 20, 1995

CJE Opinion No. 95-5

The question you have posed -- one of some complexity -- involves the application of Canon 3(C)(1)(b) to divorce litigation that was in its fourth day of trial before you when the scope of the problem was fully disclosed. The Canon, insofar as material, reads:

"A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:      

(b) he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it. . . ."

The problem arises from the role played in the matter by your former partner, with whom you practiced law until you became a judge in May, 1993. When the case first came before you in the late summer or early fall of that year, counsel for both parties informed you that the wife's divorce complaint had been served on the husband "through" your former partner roughly two weeks after you became a judge. Your former partner, however, had not undertaken to be counsel for either party, and, because his limited involvement had apparently not arisen until two weeks after the partnership ended, you concluded that there was no problem under the Canon, and, in any event, both parties through counsel waived any possible conflict or disqualification.

On April 6, 1995, the fourth day of trial, the husband's attorney, different from the attorney who represented the husband in 1993, informed you that, according to the husband, he had consulted with your former partner about the case in 1992. In the husband's deposition, read into the record by his trial attorney, the husband stated that he first consulted with your former partner about the matter in April, 1992, and, when put on the stand, the husband testified that he met with your partner in September, 1992.

Your letter indicates that, until April 6, 1995, you were unaware that there was any question of the husband's having consulted with your former partner prior to your becoming a judge. You have suspended the trial in order to obtain advice from this committee concerning the course you should follow with respect to disqualification, and you have scheduled five trial days later this month in the event you may continue. You have taken the further step of consulting with your former partner, who has filed an affidavit in the divorce action to this effect: he met with the husband in May of 1993, the purpose of which meeting was twofold: to discuss with the husband whether he wished to retain your former partner in the matter, and to have the husband accept service of process on a domestic relations summons which had been forwarded to your former partner by the wife's then counsel. Your former partner indicates that he billed the husband for that meeting, which lasted two hours; that he has checked his diary for the autumn of 1992 and finds no reference therein to a meeting with the husband; that he has no personal recollection of a meeting with the husband prior to May, 1993; and that he has no record of a prior billing.

Finally, you indicate that both parties through counsel have "represented that they would waive any disqualification if they are able to do so."

Canon 3(C)(1), concerning judicial disqualification, has been the subject of two prior advisory opinions of this Committee, 89-2 and 89-8. The latter opinion is particularly relevant to the question you ask. In that opinion we indicated that we would rarely if ever consider, case by case, whether disqualification was called for based either on a judge's actual bias towards a party or on a concern that his or her impartiality might reasonably be questioned. These matters necessarily involve fact-finding by the judge, which will be subject to appellate review in the normal course. Indeed, you have entered such findings in this case, from which it is apparent that you have concluded that there is here neither actual prejudice on your part nor the reasonable appearance of such. We take these matters as givens for purposes of this opinion.

We differentiated in opinion 89-8 between inquiries involving these bases for disqualification -- actual prejudice or reasonable appearance of prejudice -- and those "where recusal is called for automatically on the basis of an objective criterion." The criteria referred to are set out in the four lettered subparts of Canon 3(C)(1). The subparts involve cases where the judge has personal knowledge of disputed evidentiary facts, where he or a partner has served as a lawyer in the matter in issue, where he or a member of his family has a financial interest that could be affected by the decision, or where the judge or a member of his family is a party to the proceeding or is apt to appear as a lawyer or witness. Canon 3(D) provides that certain of the automatic bases for disqualification may be waived by the parties. The bases for disqualification set forth in Canon 3(C)(1)(b), including a partner's having served as a lawyer in the matter, are not included in Canon 3(D). It follows that the parties' willingness to waive disqualification cannot be dispositive of your decision whether to recuse yourself. Rather, the dispositive question is whether your former partner in fact acted as counsel for the husband during some period of time prior to your accession to the bench.

We note that, although you have entered findings with respect to the problem, the findings are procedural and evidentiary in nature. You have presented the evidence bearing on the dispositive issue, the evidence summarized above, but you have not made a finding whether your former partner, in the words of the Canon, "served during such association as a lawyer concerning the matter." Those words are, of course, not self-defining. Doubtless a perfunctory conference in which a potential client explores retaining an attorney concerning a matter and is referred elsewhere does not constitute "serv[ice]...as a lawyer" within the meaning of the Canon. Billing for a conference, on the other hand, would suggest consultation, which may well be "serv[ice]...as a lawyer," and the same would be suggested by a representation to opposing counsel that service of process may be made through the lawyer. It seems likely that more evidence than you presently have might be adduced concerning the subject of the April, 1992, or September, 1992 conference that the husband alleges occurred, and concerning the circumstances that led to service being made on the husband through your former partner shortly after you became a judge.

In exploring these questions you might keep in mind a conclusion we reached in opinion 89-2, that the likely concern of Canon 3(C)(1)(b), as respects the activities of a judge's former partner, is that a matter in which he became involved during the association may well have been the subject of office talk at the time, even if presently not recollected. That concern suggests that the purpose of the canon might best be achieved by treating any detailed substantive discussions of a legal problem as involving "serv[ice]...as a lawyer" within the meaning of the Canon even if the discussions are preliminary to retention of the lawyer by the prospective client. If, on the other hand, you should find that no discussion occurred prior to your accession to the bench, that finding, if not clearly erroneous, would dispel any problem under Canon 3(C)(1)(b).

Finally, concerning the time that you and the parties have already invested in the trial, we bring to your attention the decision of the United States Supreme Court in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), in which the court determined that the Federal counterpart of Canon 3 (C)(1)(a) required reversal of a judgment entered by a U.S. District Court judge who, although he did not recall it, had in fact been at board meetings of a charitable institution where the subject in litigation had been discussed. There are differences between that case and this, but we note that, at 866, the court took the view that a judge who learns of grounds for mandatory disqualification while proceedings are pending may be required to recuse himself notwithstanding the fact that doing so will have the effect of vitiating lengthy prior proceedings.

Beyond offering these general observations concerning the operation and likely purpose of the Canon, we cannot advise you further concerning your decision on disqualification.