Recusal: Proceedings Involving Members of Former Law Firm

July 20, 1995

CJE Opinion No. 95-6

You have asked this Committee's advice concerning the propriety of members of your former law firm appearing before you in the Probate and Family Court.

Canon 3(C)(1)(b) provides:

"(1) 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. . . ."

In your letter, you informed us that you were a shareholder in the professional corporation of . . . . It is our understanding that you are no longer a shareholder in that corporation and have no financial interest in the business of that corporation.

The plain language of Canon 3(C)(1)(b) prohibits you from hearing any matter where you or any other lawyer associated with your former law firm represented any party in the matter in controversy during any time you were associated with the firm. This prohibition is absolute and requires your recusal from such matters regardless of whether the lawyer was associated with you for over 20 years in the case of one such lawyer or for only 2 months in the case of another.

Absent any other business relationship, you are not required to recuse yourself from a matter where a former associate represents a party so long as you were not associated with the lawyer at any time during his representation of the party. See Abramson, AJS Studies of the Justice System, Judicial Disqualification Under Canon 3C of the Code of Judicial Conduct, 47-49, 1986.

Therefore, except for matters handled by your office while you were still associated with it, you are not automatically required to recuse yourself from matters wherein attorneys from the firm represent a party. Whether or not recusal is advisable when these attorneys appear before you depends on whether your impartiality might reasonably be questioned because of your past business association with them.

In making that determination you should consider the length of your association with the attorney; the time that has passed since that association ended; and any ongoing social relationship with the attorney. You should also take into account that over-zealous recusals may unfairly shift caseloads to another judge, particularly in smaller counties. Of course, disclosure made to the parties in a matter, revealing to them your relationship with a particular attorney, would allow the parties to articulate any reasonable concerns regarding your impartiality and would assist you in deciding whether or not to recuse yourself from the case.

With respect to your former associate Mr. X, recusal is required so long as you remain partners with him in a real estate investment.

Canon 2 provides, in part:

"(A) A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

In addition Canon 5, provides, in part:

 "(C)(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves."

The clear implication of Section (C)(1) is that if a judge did not refrain from financial and business dealings with lawyers who are likely to appear before him then that judge would have to disqualify himself from any matters where the attorney represented a party or witness. Thus, to avoid disqualifications by judges which could adversely impact on the daily business of the court, the Canon prohibits a judge from engaging in dealings that would necessarily result in disqualification.

Where the financial and business relationship is established before one of the participants becomes a judge, then disqualification is required. Therefore, because of your business relationship with Mr. X, coupled with your long-time professional and personal relationship, recusal is required. You have indicated you and Mr. X are in the process of terminating this business relationship. Therefore, the cause for this disqualification should not be long-standing. See the final paragraph of CJE Advisory Opinion 93-3, copy attached.

In your request to us, you ask whether transfer of the financial interest in question by you and Mr. X to your respective wives would ameliorate any potential conflict with the Canons. Transfer of ownership to your respective spouses does not resolve the inherent impingement upon the appearance of impartiality. Indeed such a transfer may reasonably be viewed as an effort to conceal a business relationship between yourself and Mr. X.

Thus, the Committee concludes that you must recuse yourself from all matters coming before your court where Mr. X represents a party. Automatic recusal is not required in matters where other attorneys from the firm appear as counsel before you. Instead you should evaluate the advisability of recusal in light of the considerations earlier stated.