Opinion  CJE Opinion No. 2012-3

Date: 09/28/2012
Organization: Massachusetts Supreme Judicial Court

After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.

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Committee on Judicial Ethics

Table of Contents

Hearing cases from former law firm in two-judge division of the Trial Court

You are an associate justice in a busy, two-judge, circuit-riding division of the Trial Court, and you have requested an opinion from the Committee as to whether attorneys from your former law firm ("Firm") may appear before you.  You frame the question as follows:  "whether there is a reasonable appearance of impropriety by [your] ruling on cases in which other members of the [F]irm appear with whom [you] have no relationship whatsoever because they are members of a small firm with two of its members being friends of [yours]."

I.  Background

In 1996, you founded the Firm with two other attorneys, and you practiced there from 1996 until 2001 when you left for a position with the court where you eventually became an associate justice.  In 2001, you "completely severed all financial ties to the [F]irm . . . ."  Since 2001, the Firm has grown to include two additional partners and several associates.  You continue to be friends with your two co-founders, who are still partners at the Firm, but you never speak with them about any case their Firm is handling in your court.  Other than those two individuals, you have no personal relationship with any of the partners or associates at the Firm.

Since joining the court staff, you "have maintained a rule that [you] would not be involved in cases in which that [F]irm was counsel."  This rule, however, is becoming "increasingly difficult for the court, and for that [F]irm, for its clients, and for their opposing parties." (Emphasis omitted).  You detail the inconveniences that result from your recusal:

"That [F]irm must schedule each and every court hearing in advance to ensure that there is a judge (other than [you]) available - including emergency hearings.  In emergencies, judges from other parts of the state have been called in to handle matters by telephone when the [F]irm is involved and [you] are the only judge otherwise available.  Outside of emergencies, judges from other parts of the state have been utilized - either the judge sits in [your] courtroom or the parties go to that judge's court - to handle cases if no other judge is available.  If settlements are reached, the parties will have to schedule another day to have it reviewed on the record if [you] are the only judge at the court that day.  Additionally, members of that [F]irm volunteer in the court's Lawyer for the Day program and are unable to proceed with a trial if [you are] the only judge that day (prejudicial to everyone involved including the party not being represented by the [F]irm attorney who has to reschedule the hearing)."

Now, eleven years after leaving the Firm, you "feel as though the basis for there being an appearance of impropriety should [you] preside over a case involving that [F]irm has significantly diminished."  While you will continue not to hear any matter in which your two co-founders are involved or to speak with them about any of their cases in your court, you are considering allowing the other members of the Firm to appear before you. (1) Having engaged in the subjective component of the two-part disqualification standard set forth in Lena v. Commonwealth, 369 Mass. 571 (1976), by consulting with your own emotions and conscience, you are confident that you "would be able to rule fairly and impartially and if on any occasion [you] felt otherwise, [you] would recuse [yourself]."  You add that this Firm is "known in the community" for appearing in your court "with claims that have statutory fee-shifting provisions (wherein the prevailing party is awarded reasonable attorneys fees). . . . and the attorneys [you] would see from that [F]irm may prevail and may seek such fees."

II.  Analysis

In the eleven years since you left the Firm, presumably all matters in which you were involved have resolved, and you have severed all financial ties to the Firm.  See, e.g., Section 3E(1)(b), (c), (e), (f) (mandating recusal where judge or judge's associate served as lawyer on matter in controversy, where judge has personal knowledge of disputed facts in matter in controversy, or where judge has an economic interest in matter in controversy).  Thus, as you impliedly recognize, the Code does not mandate your recusal whenever members of the Firm appear before you.  See, e.g., CJE Opinion No. 95-6 ("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.").

When recusal is not mandatory, "the judge ultimately has the obligation of determining whether recusal is the correct course of action."  CJE Opinion 2006-1.  In Lena, "the Supreme Judicial Court provided guidelines for your consideration.  The case's two-part test has a subjective and objective component."  Id.; see CJE Opinion 98-19 ("[R]ecusal is required only if the judge feels that he cannot decide the case impartially (the [subjective] test) or if . . . he concludes that the case is one in which . . . `his impartiality might reasonably be questioned' (the [objective] test).").  To satisfy the subjective component, "a judge should first consult his or her own emotions and conscience . . . ."  CJE Opinion 2006-1.  Likely because you recognized that "over-zealous recusals may unfairly shift caseloads to another judge," CJE Opinion 95-6, you have already conducted the subjective prong of the Lena analysis "and have, in your view, `passed the internal test of freedom from disabling prejudice.'"  CJE Opinion 2004-1.

Next, you must "attempt an objective appraisal of whether the proceeding is one in which [your] impartiality might reasonably be questioned."  CJE Opinion 2006-1.  With respect to this component, you must determine "whether your impartiality might reasonably be questioned [when these attorneys appear before you] because of your past" association with the Firm.  CJE Opinion 95-6.  Stated differently, "even if you believe you could be fair, would disinterested observers, fully informed of your relationship with the [Firm] . . . appearing before you, entertain significant doubt regarding your impartiality?"  CJE Opinion 2006-1.

The Committee has expressed reluctance in applying the objective component for the judge because it "call[s] for an exercise of judgment that this Committee [cannot] make for the judge."  CJE Opinion 98-19.  The Committee will, however, highlight some factors you should consider in making this determination:  "the length of your association with the [Firm]; the time that has passed since that association ended; and any ongoing social relationship with the [new] attorney[s]."  CJE Opinion 95-6.  A factor that should also carry some weight in your decision - and that you have already acknowledged - is that frequent recusals "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."  CJE Opinion 98-19.  "Of course, disclosure made to the parties in a matter, revealing to them your relationship with a particular [Firm], 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."  CJE Opinion 95-6.

III.  Conclusion

The Code does not mandate your recusal from all cases in which attorneys from the Firm appear before you, unless you were involved in the matter in controversy while you were at the Firm.  The two-part Lena test therefore applies, and you have already conducted the subjective component and concluded that you can handle the Firm's matters impartially.  The objective test remains, and you are in a better position than the Committee to determine whether a disinterested observer would question your impartiality in handling Firm matters given your eleven-year absence from the Firm, the lack of relationship between you and the attorneys who have joined the Firm during that eleven-year period, and the disruption to the court, attorneys, and litigants that your frequent recusals cause.

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(1) Going forward, the Committee's references to the Firm in this opinion exclude the two attorneys from whose cases you will continue to recuse yourself.  See Section 2B ("A judge shall not allow . . . social . . . relationships to influence the judge's judicial conduct or judgment. . . . nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."); see, e.g., CJE Opinion 89-2 ("You indicate that you have recused yourself in cases where your former partners appear as counsel and will continue to do so.").

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