Recusal: Proceedings Involving Former Partner

November 3, 1998

CJE Opinion No. 98-19

You were recently appointed as a judge and are in the process of winding up your practice. You and another attorney, although keeping your separate law practices, joined together in a corporation to practice mediation, which you have conducted for roughly ten years. You are dissolving the corporation along with your legal practice, and your partner is joining with another attorney to carry on the mediation practice, either as a partnership or as a new corporation. For years your mediation practice has been conducted in a building that you own, and your partner and his new associate hope to continue to conduct the new mediation practice as your tenants.

The several questions that you ask arise from this background; most concern whether you should recuse yourself as a judge from sitting on cases that your former partner or his new associate have participated in as mediators. You point out that, in your region of the Commonwealth, judges [of your Department] historically do not sit on cases wherein one of the parties is represented by the judge's former law partner. We start, nevertheless, from Canon 3(C)(1)(c), which, after stating the universal rule that a judge should disqualify himself in proceedings in which his impartiality might reasonably be questioned, goes on to require disqualification in cases where a judge's former law partner either represents a party or has been a material witness in the case only if the matter was pending in the office during the period when the judge and his former law partner practiced together. See CJE 89-2, which we attach to this opinion for your reference. In that opinion, we indicated that the concern of the Canon was that any matter pending in the office during the period of the association might have been the subject of office discussion. The same concern exists where a case was pending in the mediation practice during the judge's association with it. We think the same disqualification should apply. Unlike an attorney, however, a mediator typically has no financial interest, direct or indirect, in the outcome of a case that he attempted to mediate. Consequently, it is our view that Canon 3, apart from the complication of the tenancy, which we address below, does not require you to recuse yourself from sitting on cases in which your former partner or his new associate have acted as mediators, except cases that were pending in the practice during the period of your association.

You ask a related question, whether, if you are not required to recuse yourself in cases mediated by your former partner and his new associate, you may nevertheless do so routinely "in order to preserve the appearance of neutrality." As set out in Lena v. Commonwealth, 369 Mass. 571, 575 (1976), recusal is required only if the judge feels that he cannot decide the case impartially (the internal test) or if on an objective appraisal he concludes that the case is one in which (in the words of Canon 3[C][1][a]) "his impartiality might reasonably be questioned" (the external test). We indicated in our opinions CJE 89-8 and CJE 95-5 that the application of the external test, except where one of the mandatory bases of disqualification was involved (Canon 3[C][1][a-d]), called for an exercise of judgment that this Committee could not make for the judge. We can, however, direct your attention to generally applicable principles, two of which are that the judge's application of the external test should depend on an "objective appraisal," as stated in Lena, and that "a judge may very well have an obligation 'to resist a challenge to his impartiality which is tenuous, baseless, or frivolous.'" Edinburg v. Cavers, 22 Mass. App. Ct. 212, 217 (1986), quoting from Police Commr. of Boston v. Municipal Court of the West Roxbury Dist., 368 Mass. 501, 508 (1975). The reason for exercising restraint in avoiding what you call "routine" disqualifications is that they can be disruptive to the orderly dispatch of the court's business and may engender delays to the litigants in having their cases heard and disposed of. When there will be no ensuing disruption of the orderly flow of the court's business, a judge may reasonably feel less restraint in disqualifying herself for noncompelling reasons.

Your final question concerns the effect of the tenancies. In our opinion CJE 93-3, we indicated that under Canon 3(C)(1)(c) and Canon 2, a judge should disqualify himself in a case where an attorney for one of the parties is a tenant in an office building owned in substantial part by the judge. The basis for that opinion was that the attorney has a financial interest, direct or indirect, in the outcome of the cases in which he provides representation and that a whiff of impropriety cannot be avoided where the judge has financial dealings with one who has an interest in a case the judge must decide. Thus, so long as your former partner and his new associates are your tenants, you should recuse yourself in any case where either of them appears as counsel for a party. In our view, however, the same reasoning is not generally applicable to a tenant of the judge whose only relationship to the case is that of mediator. In the usual case, one who has tried to mediate a dispute has no financial interest in its outcome in court. (1) In particular instances there may be a financial interest in the mediator, but, in the generality of cases, we see no objective reason for a judge to disqualify herself from sitting on a case that one of the judge's tenants mediated.

 


1. It is our understanding that a mediator is almost never called on by a party to be a witness, but, if you should ever be apprised that one of the parties intends to do so, and the tenant-mediator's testimony is to be more than formal, it is our view that the preferable course would be for you to recuse yourself to avoid having to pass on the credibility of one with whom you have business dealings.