Opinion  CJE Opinion No. 2023-02

Date:	09/05/2023
Organization:	Massachusetts Supreme Judicial Court

Letter Opinion of the Committee on Judicial Ethics

Disqualification: Prior Professional and Personal Relationship with Attorney

You seek guidance from the Committee on Judicial Ethics (CJE or Committee) regarding whether the Code of Judicial Conduct (Code) requires you to either disqualify yourself from or make a disclosure on the record in matters involving an attorney with whom you used to work and with whom you also had a personal relationship. 

As explained below, the Code leaves the question of disqualification to a judge’s sound discretion so long as the judge has satisfied both a subjective and an objective analysis. Therefore, you should first conduct a subjective analysis to determine whether you can be impartial. If so, you should next conduct an objective analysis by carefully considering the facts and subject matter of each case that comes before you to determine whether your impartiality may be reasonably questioned by a fully informed disinterested observer. We offer several factors to aid you in this fact-specific objective assessment and note that disclosure may be an appropriate course even if you do not believe there is a basis for your disqualification.    

1. Background.^[1] You sit on a small court in a county with a small bar. Prior to becoming a judge, you practiced in this county for approximately twenty years. During that time, you worked with an attorney for approximately seven years. In addition to a working relationship, you and this attorney also shared a personal relationship for a period of time. Your personal relationship and your professional relationship each ended over ten years ago. This attorney no longer works at your former firm but is a frequent practitioner in the court where you sit. Anticipating that this attorney is likely to be involved in matters that may come before you, you have asked the Committee whether disqualification or disclosure of your past professional and personal relationship with this attorney is required in matters involving the attorney. You believe that, given the small size of the court and the bar in the county in which you sit, disqualification from all cases involving this attorney would likely present challenges for court administration and operations.        

2. Discussion.  “An independent, fair, and impartial judiciary is indispensable to our system of justice.” Code, Preamble. See also Rule 1.2 (“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”); Rule 2.4(C) (“A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.”). Therefore, Rule 2.11 requires that "[a] judge shall disqualify himself or herself in any proceeding in which the judge cannot be impartial or the judge's impartiality might be reasonably questioned.” Rule 2.11(A). The test for disqualification requires that the judge satisfy both a subjective and an objective standard. “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.” Rule 2.11, Comment [1].  Paragraphs (A)(1) through (5) provide examples of circumstances in which disqualification is required, including when “[t]he 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]  Rule 2.11(A)(1). 

Here, you should begin by conducting an individualized subjective inquiry to determine whether you can remain impartial with respect to matters involving this attorney. If you determine that you can remain impartial, you should next conduct an objective inquiry to determine whether your impartiality could be reasonably questioned by a fully informed disinterested observer. 

Where no specific provision of Rule 2.11(A) applies, as appears to be the case here, the Committee is generally reluctant to set forth bright-line rules concerning whether the objective standard requires disqualification, as the assessment of whether the appearance of partiality reasonably exists in any particular proceeding is highly fact specific. Instead, we favor an individualized, multi-factor analysis. Factors relevant to the objective inquiry in the circumstances here include but are not limited to:

• How long you worked with this attorney;
• How long you had a personal relationship with this attorney;
• The nature and extent of your professional relationship (e.g., how closely you worked together, the nature of your working relationship);
• The nature and extent of your personal relationship (e.g., how significant or meaningful the relationship was to both parties);
• The terms on which your professional relationship ended;
• The terms on which your personal relationship ended (e.g., whether your personal relationship ended on good, neutral, or poor terms);
• How long it has been since the end of your professional relationship;
• How long it has been since the end of your personal relationship;
• Whether you have had continuing social or other contacts with the attorney in question since the end of both your professional and personal relationships; and
• The impact of disqualification on the court where you sit.

The Committee must leave it to you to evaluate the relevant factors, though we offer some additional guidance regarding the impact of the passage of time on whether disqualification is required from proceedings involving the attorney. Some jurisdictions have established bright-line periods during which judges must disqualify themselves from matters involving, for example, former clients, former colleagues, or attorneys who previously represented them. However, Massachusetts is not among such jurisdictions, favoring instead an individualized, comprehensive analysis.^[3] See, e.g., CJE Opinion No. 2018-04 (with respect to former clients, “[i]n 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”); CJE Frequently Asked Questions at p. 12 (with respect to a judge’s former firm, factors relevant to the objective standard “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”); Rule 2.11, Comment [1] (with respect to a judge’s former attorney, “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”). Here, consistent with our prior opinions, assuming that you satisfy the subjective standard, we decline to establish a defined time period during which you should disqualify yourself from matters involving an attorney with whom you previously had a professional and personal relationship.

That said, the fact that it appears to have been over ten years since the end of your personal and professional relationship with the attorney in question is a factor that, in isolation, counsels against disqualification. The apparent burdens that your disqualification from all matters involving this attorney would place on the small court where you sit, standing alone, also disfavor disqualification. However, you should ask yourself whether an objective person, knowing all information relevant to your relationship with this attorney, including but not limited to the factors we have identified, would have reason to question your impartiality in matters involving the attorney. 

Even if a judge does not believe that there is a basis for disqualification under either the subjective or objective standard, the judge must disclose on the record information that the judge believes the parties or their attorneys may reasonably consider relevant to a possible motion for disqualification. Rule 2.11, Comment [5]. Therefore, if you conclude that disqualification is not required from matters involving this attorney under either the subjective or objective standard, you should nevertheless consider in any particular matter whether disclosure on the record of your prior relationship with the attorney is required because the parties or their attorneys might reasonably believe it to be a ground for a motion to disqualify.  Rule 2.11, Comment [5]. Based on the information you have provided, it appears that the passage of more than a decade since the conclusion of your personal and professional relationship with this attorney is likely a factor against requiring disclosure of your prior association. Unless your personal relationship has continued more recently or was of such a nature that a reasonable person could believe that you are not able to remain impartial despite the passage of time, it appears likely that, if the subjective and objective inquiries outlined above are satisfied, disclosure also will not be generally required absent unique circumstances.

3. Conclusion. The question of whether you should disqualify yourself from matters involving an attorney with whom you had a personal and a professional relationship more than decade ago cannot be answered merely by reference to the amount of time that has passed since the end of your relationship. Instead, the Code requires that you first conduct a subjective analysis to determine whether you can remain impartial. If you are satisfied that you can, the objective standard requires that you consider the totality of circumstances to determine whether a reasonable observer may have cause to question your impartiality in any particular proceeding involving the attorney. And, even if you determine that disqualification is not required, you should consider whether the parties to a proceeding or their attorneys might reasonably consider information regarding your past association with the attorney in question to be relevant to a possible motion for disqualification. Ultimately, while we offer relevant principles and factors for your consideration, we must leave it to you to answer the question of whether disqualification or disclosure on the record is required in the circumstances outlined here.      

[1] This opinion relies on facts you have provided. We have not undertaken an independent investigation of this information. If material facts have been omitted or misrepresented, this opinion is without force or effect.

[2] Where disqualification is required for reasons other than prejudice or bias, Rule 2.11(C) permits a judge to disclose on the record the basis of the disqualification to give the parties an opportunity to waive disqualification. However, judges are cautioned against over-reliance on this waiver provision. See CJE Opinion No. 2018-04. 

[3] As we observed in CJE Opinion No. 2018-04, though a bright-line rule has the advantage of being easy to apply, it may be mistakenly regarded as imposing a defined period of disqualification after which a judge can hear a matter without further consideration of the unique factors that may nonetheless counsel in favor of disqualification.