Recusal, Matters Involving Co-authors

July 28, 1997

CJE Opinion No. 97-6

You state that you recently were a panelist at a bar association seminar. The other panelists were an attorney who practiced alone and two attorneys who were partners in a small firm. It has been proposed that the written materials you and the other panelists prepared for the seminar be combined to form the basis of a treatise to be published by a well-known publisher. You ask advice on whether, if the book is published, you must disqualify yourself in proceedings in which your co-authors or members of their firm represent one of the parties. You further ask whether the obligation to disqualify yourself turns on whether you receive compensation from this publishing venture.

Your inquiries call into play several provisions of the Code of Judicial Conduct. The provision, on its face, most directly applicable is Canon 4(A) which states that a judge "may . . . write . . . concerning the law, the legal system, and the administration of justice." Moreover, he or she may be compensated for doing so as long as the compensation does not "exceed what a person who is not a judge would receive for the same activity." See Canon 6(A). The permission granted by Canon 4(A) must be read, however, in conjunction with Canon 5(C)(1) which provides:

"A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, . . . or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves."

If you are to be compensated for this writing venture, it would be considered a "financial or business" dealing. It is unclear from your request whether your contributions to this treatise have essentially been completed or whether you will be involved in further collaborations with these attorneys. Since we do not read "transactions" as limited to formal business events such as sales or investments, we conclude that Canon 5(C)(1) would bar you from participating in this venture if you receive compensation, if these attorneys are likely to come before your court, and if it is anticipated that you will be involved in frequent or extended interactions with them in writing this book.

Provided that the Canon 5(C)(1) prohibition does not come into play either because you are not compensated or because the other prerequisites are not present, Canon 3(C) addresses any obligation you may have to disqualify yourself. Subsection (1) of that provision states that a "judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned." The Canon goes on to list specific examples where disqualification is required which do not apply here. In a situation like yours which does not fall within one of the enumerated examples, this Committee, generally, has been reluctant to advise judges in making recusal decisions, leaving them "to the judge's discretion." See Commonwealth v. Gogan, 389 Mass. 255, 259 (1983). In Lena v. Commonwealth, 369 Mass. 571, 575 (1976), the Supreme Judicial Court has given judges the following guidance:

"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.'"

As we noted in CJE Opinion No. 89-8, "[t]hese are questions of judgment which will often turn on slight differences of factual context, including such factors as the inconvenience to the court and the parties if the judge should decide to recuse himself or herself."

However, we did recognize in CJE Opinion No. 89-8 that "[d]oubtless there will be situations presenting a general question of a type apt to recur where the objective appearance of partiality is so manifest as to call for expansion of the canon's list of particular factual contexts in which recusal is called for" and concerning which we would render advice. Such a situation is presented in your case if one of your co-authors appears before you during the period you are collaborating on this writing venture. To be sure, the case for recusal here is not as compelling as in CJE Opinion No. 93-3 where the judge was receiving rental income from attorneys who regularly appeared before him. Yet, when one of these attorneys appears before you while you are working together on this book, the litigants, and the general public, would reasonably perceive that there is more than a casual association between judge and lawyer which could evoke some favoritism, perhaps unwittingly, toward the co-author. Moreover, the on-looker is never in a position to know the division of labor in such a writing venture and may well be concerned that the judge would be biased toward an attorney who may be carrying the laboring oar.

For these reasons, while involved in this venture, you should recuse yourself from all contested matters in which one of your co-authors represents a party and from any ex parte matter. Recusal is necessary since the conflict presented here cannot be remedied either by disclosure or by agreement of the parties that you can decide the case. However, recusal will not always be required where other members of the firm in which two of your co-authors are partners appear before you. There, any influence would be sufficiently indirect that the need for recusal may be left to your discretion on a case by case basis. If the situation arises, you may want to consider the nature of the matter before you, the magnitude of the case, and its potential value to the law firm.

After the book appears, the question whether you should continue to recuse yourself will depend on the circumstances of the case, including such questions as the subject matter of the work, the continued payment of royalties, the likelihood of future editions, the subject matter of the litigation, the passage of time since the publication, and the like.

One final observation on recusal. If prior experience tells you that your co-authors appear in your court on a regular basis such that your frequent recusal will put a significant burden on your judicial colleagues, you should seriously question embarking on this venture. Further, if they have not appeared in your court regularly up to now, but may be expected to do so after you have embarked on the venture such that your frequent recusal will be similarly burdensome, you should then consider ending any future work on the treatise itself and on supplements or follow-up volumes.