Opinion  CJE Opinion No. 2018-04

Date:	10/17/2018
Organization:	Massachusetts Supreme Judicial Court

Letter Opinion of the Committee on Judicial Ethics

Disqualification, Party is Former Client of Judge

This Letter Opinion summarizes the advice the Committee on Judicial Ethics (CJE) has given to a newly-appointed judge in the Trial Court. Before appointment to the bench, this judge had an active private practice in the region where the judge now sits.(1) The judge seeks advice concerning whether she must disqualify herself from cases in which a former client is a party, but the judge has determined that she is able to be impartial.

Rule 2.11 of the Code of Judicial Conduct addresses the subject of disqualification.  Paragraph (A) enumerates certain grounds for disqualification:  

 (A) A judge shall disqualify himself or herself in any proceeding in which the judge cannot be impartial or the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances: 

   (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding. 

   (2) The judge knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is: 

(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party; 

(b) acting as a lawyer in the proceeding; 

(c) a person who has more than a de minimis financial or other interest that could be substantially affected by the proceeding; or 

(d) likely to be a material witness in the proceeding. 

(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, domestic partner, parent, or child, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or is a party to the proceeding. 

(4) The judge, while a judge or a judicial applicant or judicial nominee, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy. 

(5) The judge: 

(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association; 

(b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; 

(c) was a material witness concerning the matter; or 

(d) previously presided as a judge over the matter in another court. 

Paragraph (B) reminds the judge of the obligation to keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse or domestic partner and minor children residing in the judge’s household. 

Paragraph (C) provides for a waiver of disqualification by the parties, so long as the disqualification is not for bias or prejudice under Paragraph (A)(1).(2)

In general, the Code of Judicial Conduct leaves the question of disqualification to the judge's sound discretion so long as the judge satisfies both a subjective and an objective standard. As explained in Comment [1] to Rule 2.11, "The subjective standard requires disqualification if the judge concludes that he or she cannot be impartial. The objective standard requires disqualification whenever the judge’s impartiality might reasonably be questioned by a fully-informed disinterested observer, regardless of whether any of the specific provisions of Paragraphs (A)(1) through (5) apply."  In the instant case, no specific provision of Paragraph (A) applies, and the judge has represented that she satisfies the subjective test.

Where no specific provision applies, the CJE historically has expressed reluctance to advise judges concerning whether the objective standard requires disqualification, as the assessment of whether the objective appearance of partiality exists is highly fact specific. The CJE has, however, given advice "where a general question arises of a type that is apt to recur, and where the objective appearance of partiality may be manifest." CJE Opinion No. 2004-1. A judge's presiding over a case in which a former client is a party is a situation that is likely to recur.

Although our Code does not address whether a judge is disqualified if a former client is a party, it does consider occasions where a judge formerly was a client of a party's lawyer or the lawyer's firm. In Comment [1] to Rule 2.11, the Massachusetts Code advises a judge as follows: "By way of example, a judge must disqualify himself or herself from any proceeding in which the judge is a client of a party’s lawyer or the lawyer’s firm. Whether a judge must continue to disqualify himself or herself after this attorney-client relationship has concluded should be determined by considering all relevant factors, including the terms on which the lawyer provided representation, the length of time since the representation concluded, the nature and subject matter of the representation, and the extent of the attorney-client relationship, including the length of the relationship and the frequency of contacts between the judge and the lawyer. A judge must also bear in mind that social relationships may contribute to a reasonable belief that the judge cannot be impartial."(3)

Comment [1] reflects that the Massachusetts Code favors an individualized, comprehensive analysis rather than a bright-line rule where a past attorney-client relationship in at issue. The CJE likewise has favored a multi-factor, individualized analysis when a judge considers whether to hear cases involving attorneys from the judge's former firm. In the CJE's Frequently Asked Questions document, the CJE notes that factors for a judge to consider include "the length of the judge’s association with the firm, the time that has passed since the association ended, any ongoing social relationship with the new lawyers, and the impact of frequent disqualification on the orderly flow of the court’s business."(4)

Although Massachusetts has not previously issued a formal opinion on disqualification when a former client is a party, a number of other jurisdictions have addressed this issue.  Most of these jurisdictions recommend a list of factors for a judge to consider when assessing whether the judge's partiality may reasonably be questioned. These factors include but are not limited to the nature, frequency, intensity, and duration of the prior representation and the length of time since the representation ended. See, e.g., Cynthia Gray, "Disqualification Issues Faced by New Judges," Judicial Conduct Reporter (Fall 2010). Several jurisdictions, however, establish a bright-line period during which disqualification is required, after which a judge must determine whether continued disqualification or disclosure is warranted. Id. See, e.g., California Code of Civil Procedure, § 170.1 (two years); Illinois Code of Judicial Conduct (seven years); Michigan Court Rule 2.003 (two years); New York Committee on Judicial Ethics Opinion 17-100 (2017) (two-years). The Committee charged with advising federal judges recommends that judges "consider a recusal period of at least two years, recognizing that there will be circumstances where a longer period is more appropriate." Committee on Codes of Conduct Advisory Opinion No. 24 (June 2009).

We are persuaded that the individualized, multi-factor analysis is the better approach.  While a bright-line rule has the advantage of being easy to apply, it fails to appreciate that the issue of disqualification based on a past attorney-client relationship is necessarily very fact specific.(5)

Relevant factors for a judge to consider in this fact-intensive inquiry include but are not limited to the following:

• The frequency and duration of the prior representation, including whether the former client was a regular client;
• The nature and intensity of the prior representation;
• The length of time since the representation ended;
• The amount of financial benefit the judge received representing the former client;
• The judge's continuing duty of loyalty to a former client and the obligation to keep confidential the client's communications to the judge within the course of the representation, see Mass. R. Prof. C. 1.9;
• Whether in the pending case, the former client will be litigating policies or practices the judge helped to formulate or defend as an attorney; and
• Whether the former client will be calling witnesses the judge previously prepared or called to testify, or with whom the judge previously worked.

 In all instances where disqualification is for reasons other than personal bias or prejudice,  the waiver provisions of Rule 2.11(C) are available. We caution judges, however, against over-reliance on Paragraph (C) out of concern that counsel who regularly appear before a judge may perceive such an inquiry to be potentially coercive. See Letter Opinion 2016-01.

We also note that even where a judge concludes that disqualification is not required, disclosure may nonetheless be appropriate. Comment [5] to Rule 2.11 provides, "[a] judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification."

In all matters where a judge's former client is a party and the judge has concluded that he or she can be impartial, the judge should carefully scrutinize all aspects of the past attorney-client relationship to consider whether the judge's impartiality might reasonably be questioned by a fully-informed disinterested observer.

(1) To maintain the judge's anonymity, details concerning the judge's previous practice are omitted. 

(2) Paragraph (C) details the remittal procedure. It provides in full: A judge subject to disqualification under this Rule, other than for bias or prejudice under Paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of and without participation by the judge and court personnel, whether to waive disqualification. If, following a consultation that is free from coercion, express or implied, the parties and lawyers agree that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding. 

(3) This portion of Comment [1] is not in the American Bar Association's Model Code of Judicial Conduct nor, to the best of our knowledge, the Code of any other state. The Committee that proposed the Massachusetts Code to the Supreme Judicial Court added this non-conforming provision to give additional guidance to judges.

(4) The Frequently Asked Questions document is online at https://www.mass.gov/doc/massachusetts-judicial-ethics-opinions-frequently-asked-questions

(5) Another drawback to a bright-line rule is that some judges might mistakenly regard it as imposing a defined period of disqualification after which it is permissible to hear a case involving a former client. There may be occasions when the period of time during which a judge should disqualify himself or herself from hearing a case involving a former client would exceed any specific period that might be established.