CJE Opinion No. 2008-6

Obligation to Report Attorney Misconduct to Board of Bar Overseers

October 6, 2008

     You have asked four questions concerning possible recusal from cases involving an attorney whom you are considering referring to the Board of Bar Overseers. This attorney is counsel in a number of cases before you, and also represents himself as a pro se defendant in a domestic relations matter and related contempt proceedings. Your Memorandum of Decision and Order denying the motion plaintiff's renewed motion to recuse outlines the history of this matter. In November, 2007, the attorney filed a motion to recuse in the case in which he is appearing pro se, as well as any matter in which he has entered an appearance. He alleged that you have "exhibited a bias, prejudice, a conflict of interest, lack of impartiality or the appearance of same." His assertions include the claims that you have entered the courtroom with his estranged wife's former attorney and made a scheduling error in another case in which he was involved. You denied the initial motion to recuse. On January 30, 2008, the attorney filed a second motion to recuse. As grounds for this motion he stated that there has been a clear pattern of corrupt behavior and that the court lacks the minimum competence to sit as a justice in the probate court. In expanding upon his initial allegations, he states that "[r]ats hate sunlight," and "[t]here will be a floodlight shone..." upon your conduct. Not surprisingly, you have found these assertions to be inappropriate and inflammatory. In your Memorandum you found the attorney's statements in his pleadings and on the record to have no basis in fact and to have been made with the intent to discredit the court. For example, in a supplemental memorandum filed in February of 2008 the attorney alleged that you gave a $15,000.00 wedding present to Wife's prior counsel, which you note was an award for counsel fees; an award that was neither challenged or appealed. The wife filed a complaint for modification two weeks later. Both complaints have been scheduled for trial.

     As a result of "continued inappropriate actions" you imposed on the attorney a sanction of $500.00 payable on or before May 15, 2008. This fine has not been paid and you have scheduled a show cause hearing at the conclusion of the modification hearing to determine whether he should be held in contempt for failure to comply with the court order. You also state that prior to your involvement in the case, the attorney had also attacked the integrity of the court appointed guardian-ad-litem. In addition to the attorney's attacks on your integrity and your findings of factual misstatements you question the attorney's ability to competently represent his clients. In a contempt action in which he appeared before you he indicated to his client that you would be "unable to render a fair decision." You asked the client if she would prefer that you recuse yourself and she stated that she believed you could be fair. During subsequent proceedings you observed the client to be withdrawn and "uncomfortable" which increased your concerns that the attorney's ability to represent this client had been compromised.

     You are concerned that the attorney's conduct may necessitate recusal, and referral to the Board of Bar Overseers. Specifically, the four questions you ask are: (1) Whether you must report the attorney to the Board of Bar Overseers while there are pending matters in the case; (2) whether you must recuse yourself from the case immediately upon reporting the attorney; (3) whether you should consider the possibility that the attorney will gain an unfair advantage from your recusal; and (4) whether you must copy the attorney on any complaint you file with the Board of Bar Overseers. We address each in turn.

     As to whether you must report the attorney to the Board of Bar Overseers while there are pending matters in the case, we direct your attention to Section 3 D of the Code of Judicial Conduct, which states in relevant part:

"(2) A judge having knowledge of facts indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct that raises a significant question as to that lawyer's honesty, integrity, trustworthiness, or fitness as a lawyer shall inform the Bar Counsel's office of the Board of Bar Overseers."

     The commentary to Section 3 D states that attorney misconduct rises to this level if proof of such "would likely result in an order of suspension or disbarment, including [such conduct as] knowingly making false statements of fact or law to a tribunal . . ." In your Memorandum of Decision you found that the attorney engaged in such conduct (See CJE Opinion 2007-8 in which the Committee concluded that a judge is required to report the attorney to the bar counsel's office of the board when a judgment had been entered against the attorney finding that, "the attorney-litigant had filed false affidavits and had also engaged in other unspecific 'inappropriate conduct' in that court.") As the attorney filed affidavits that you found to be false in your court and you observed conduct that that caused you to question his fitness as an attorney in representing his clients, you have an obligation to report. In regard to the time of filing the report, Section 3 D compels immediate filing "when a person will likely be injured by a delay in reporting, such as where the judge has knowledge that a lawyer has embezzled client or fiduciary funds and delay may impair the ability to recover the funds." The Code does not prescribe a specific time for reporting non-emergency situations, but the report should be made in a reasonable time due to the lawyer's conduct that was observed in this case, and the potential that similar conduct may occur in pending cases.

     As you correctly note in your Memorandum, the question of recusal is left to the judge's discretion as outlined in Lena v. Commonwealth, 369 Mass. 571 (1976). This two-pronged test is comprised of subjective and objective components. "Faced . . . with the question of his capacity to rule fairly, the judge [must] 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.'" Id. (quoting S.J.C. Rule 3:25 Canon 3(C)(1)(a))      You must first decide whether you believe that you are free from "disabling prejudice." This committee is not in a position to advise a judge with respect to the subjective test. CJE Opinion 89-2. "In general, the question of disqualification is left to the judge's discretion." Commonwealth v. Gogan, 389 Mass. 255, 259 (1983). However, should you believe yourself to be subjectively impartial, you must still determine whether your impartiality might be reasonably questioned. In your February 15, 2008, Order you applied this test and denied the motion to recuse. Of course, given the circumstances you have described and the repetitive inflammatory statements and conduct that attack your integrity, you have the discretion to re-consider your decision.

     The question of whether the attorney will gain an unfair advantage or "benefit" from your recusal is open to conjecture. That may, or may not be the end result, but the Committee believes that this consideration is not dispositive in considering recusal. The proper test for recusal is set forth in Lena, and questions of advantage to the motioning attorney are not dispositive in determining whether the Code requires recusal.

     With respect to whether you must copy the attorney on any complaint you file with the Board of Bar Overseers, it appears that the Code does not require you to do so. However, there may be prudential reasons to do this and your decision not to could cause a reasonable person to question your impartiality under the objective prong of the Lena test.

     In these circumstances, the Committee is of the opinion that you are required to report the attorney to the Board of Bar Overseers because of the false affidavits filed and your concerns that the attorney has compromised his ability to represent his client. Additionally, you may choose to report the attorney even while there are matters pending. In making your decision to recuse you must apply the Lena test. A judge is not automatically disqualified because of the filing of an ethical complaint or because of pending contempt proceedings⁽¹⁾. You must apply the Lena test in determining whether the line has been crossed. Finally, while the Code does not require you to send the attorney a copy of any report you send to the Board, it may be appropriate to do so.

¹ See generally, James J. Alfini, Steven Lubet, Jeffrey M. Shaman & Charles Gardner Geyh, Judicial Conduct and Ethics � 4( 4th ed. 2007)(discussing disqualification).