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Ethics Opinion

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JI-44

November 1, 1991

SYLLABUS

    A judge's "personal acquaintance" with an advocate or a party, without more information indicating the nature of the acquaintance which gives rise to a presumption of bias, is insufficient grounds for a judge's automatic recusal. Where a judge is concerned about the appearance of bias because of a personal acquaintance with a party or advocate, the judge should advise the parties and their lawyers of the judge's concerns and recuse unless asked to proceed.

    A judge may not "perpetually recuse" from cases of a particular advocate or particular party because of derogatory comments made against the judge by the advocate or the party in a particular case, or because of the judge's personal dislike of a particular advocate.

    A lawyer may not associate as co-counsel with a lawyer in another firm, or offer or accept a referral from a lawyer, when one of the reasons for associating with or referring to the particular lawyer is to instigate a judicial recusal.

    References: MCJC 1, 2C, 3C; MCR 2.003(B); MRPC 3.5, 4.1, 8.4(c); J-4; JI-23, JI-43; R-3; Brody v. President & Fellows of Harvard College, 649 F2d 10 (CA 1 1981); Hirych v. State Fair Commission, 376 Mich 384 (1965); Margiotta v. Kosik, et al., Civil No. 90-73002 (1-11-91).

TEXT

The Committee has been asked about the ethical ramifications of judicial disqualification for reasons relating to the judge's personal relationship with one or more parties or lawyer advocates, including the following circumstances:

  1. May a judge recuse from hearing any cases of a particular party or advocate, on grounds of being "personally and professionally acquainted"?
  2. May a judge "perpetually disqualify" himself/herself from matters in which a particular party or lawyer appears, because the lawyer in a particular case made derogatory remarks about the judge on the record?
  3. Where it is known that one judge of a multi-judge circuit recuses or seeks reassignment whenever a particular lawyer is scheduled to appear before the judge, is it unethical for another lawyer to associate with the lawyer as co-counsel or to refer cases to the lawyer in order to effectuate the judge's recusal?

DISQUALIFICATION FOR PERSONAL ACQUAINTANCE

Although a judge is held to a high standard to avoid situations and relationships with persons whose interests are likely to come before the judge, personal relationships in which judges commonly find themselves are not ordinarily grounds for recusal. As noted in Judicial Conduct and Ethics, Shaman, Lubet and Alfini, The Michie Company, 1990, pp. 124-127, a judge's social relationship with a party, witness or advocate appearing before the judge is of special concern.

    "On the one hand a judge should not be discouraged from having social or other extrajudicial relationships; in fact, a judge's effectiveness can be enhanced by them. On the other hand, the obvious problem of the appearance of bias and favoritism exists when a friend or associate appears before the judge; these social relationships should not dimish the dignity of the judiciary or interfere with judicial responsibilities." Judicial Conduct and Ethics, at 124.

MCJC 3C encourages judges to raise the issue of disqualification whenever the judge has cause to believe that disqualification is required under MCR 2.003(B). MCR 2.003(B) sets forth the general rule for judicial disqualification:

    "A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in which the judge . . . .

      (2) is personally biased or prejudiced for or against a party or attorney . . . ."

Whether a judge can impartially hear a case is a subjective standard. Certain personal relationships raise a presumption of bias, whether or not there is actual bias, e.g., R-3, judge disqualified in proceedings in which cohabiting partner appears as advocate; JI-23, judge disqualified from case in which advocate is judge's opponent in judicial election. Other personal relationships fall short of a presumption of bias, but require the judge to disclose the relationship to the parties and their counsel, and recuse unless asked to proceed, e.g., CI-306; JI-43, judge's personal lawyer appearing as advocate in unrelated matter; J-4, judge's financial interest with advocate appearing in unrelated matter before the judge; R-3, judge presiding in matter in which relative within third degree to judge is member of advocate law firm.

MCJC 1 emphasizes the other side of this issue:

    "An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. A judge should always be aware that the judicial system is for the benefit of the litigant and the public, and not the judiciary. The provisions of this Code should be construed and applied to further those objectives."

MCJC 1, by its placement as the first Canon, thus sets the tone for the entire ethics code, i.e., that the independence of the judiciary from outside influences is paramount, and that the judge's duty is to place the interests of the litigant and the public above the judge's own interests.

The ethics code is replete with provisions which emphasize the separation of a judge's personal activities from activities as a member of the independent judiciary. A candidate for judicial election is to refrain from statements of political philosophy which create the impression of the candidate's predisposition to a particular view unrelated to the facts of a particular case, since the statements may lead to disqualification if the candidate is successful, C-219; C-222; C-227; CI-696. A judge may not serve on the board of a charitable/civic organization whose interests are likely to come before the judge, since that service may result in disqualification, MCJC 5B. A judge is required to manage personal investments to minimize instances of recusal, and divest personal financial interests that require frequent disqualification, MCJC 5C(3). A judge may not use the prestige of judicial office for the private business interests of others, MCJC 2C.

Judges will be personally acquainted with lawyers, not only because the lawyers appear before the judge as advocates, but because of mutual participation in bar activities, in community causes and events, as neighbors, as members of the judge's campaign team, etc. We have found no authority which suggests that a judge's long acquaintance with a local lawyer renders the judge incapable of evaluating the lawyer's advocacy on behalf of a client in a particular case. In fact, we rely upon the judge being able to set aside personal familiarity, and to adjudicate the matter solely on the basis of the evidence presented.

The same is true of judge's personal acquaintance with parties. Unless the judge has personal knowledge about the particular matter at issue which is not part of the evidence presented, the judge should ordinarily be able to set aside personal familiarity and adjudicate the matter.

The authors in Judicial Conduct and Ethics reason that friendships within the bench and bar do not, of themselves, cause prejudice, and whether or not disqualification is required depends on how personal the relationship is between the judge and the party, witness or advocate. See also, Matthews v. Rodgers, 651 SW2d 453, 456 (Ark 1983), judge not disqualified from matter in which advocate served as pallbearer at judge's father's funeral; Wallace v. Wallace, 352 So 2d 1376 (Ala 1977), judge should recuse where party had appointed judge to position and remained friend and client of judge's father; Ford v. Ford, 412 So 2d 789 (Ala 1982), judge who attended same political gatherings as party-legislator who voted for judicial pay raise bill not disqualified; United States v. Murphy, 768 F2d 1518, 1537 (CA 7 1985), judge should recuse when judge and advocate were such close friends that their families were planning on joint vacation immediately after case sentencing.

This viewpoint was examined in the Margiotta v. Kosik, et al., Civil No. 90-73002 (1/11/91), order on a motion to disqualify the presiding judge, because the judge disclosed on the record that he had been acquainted with the defendants, but had not had a social relationship with the parties. The order stated in part:

    "Acquaintanceship with a party does not put in question the impartiality of a judge. Two judges of this district each sit in nonstatutory divisions . . . and a single judge sits in the Northern Division. It is likely that each of these judges is acquainted with every lawyer and prominent person in his division. A rule requiring recusal for the acquaintanceship described by [the judge] would make the federal justice system almost unworkable in single judge districts or divisions."

The same reasoning is applicable in this matter. Many counties still share one circuit judge or have one probate or district court judge serving the entire county. It is not feasible to consider that a judge should recuse every time a party is acquainted or personally knows the party or lawyer. "After all, judges in rural, semi-rural and even some metropolitan areas would be subject to a large number of disqualifications if friendship with a lawyer was the sole basis for finding prejudice on the part of the judge." Judicial Conduct and Ethics, Shaman, Lubet and Alfini, p. 126. In accord, In re Estate of Carlton, 378 So 2d 1212, 1220 (Fla 1979).

There is considerable authority that if there is doubt concerning whether recusal is required, the balance should be weighted in favor of recusal. JI-43; Hirych v. State Fair Comm'n, 376 Mich 384 (1965); ABA Model Code of Judicial Conduct, 3E(1), "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, . . . ." However, the judge should be able to make a subjective assessment as to the level of interest or familiarity a judge has with the litigant or the lawyer. See also, Brody v. President & Fellows of Harvard College, 649 F2d 10 (CA 1 1981), "All judges come to the bench with a background of experiences, associations and viewpoints. This background alone is seldom sufficient in itself to provide a reasonable basis for recusal."

We believe, therefore, that "personal acquaintance" without more is insufficient grounds for a judge to automatically recuse. In such cases where the judge is concerned about the appearance of bias, the judge should disclose those concerns to the parties and their counsel, and recuse unless asked to proceed.

There is very little guidance in ethics opinions regarding a judges' administrative duties under Canon 3. Most judicial discipline opinions on the subject deal with neglect and delay of cases, not with assignment of judges. It seems clear, however, that the chief judge does possess and should exercise authority regarding assignment of cases and exercise of voluntary recusal. One way such authority is properly exercised is to require a statement of the reasons for voluntary recusal in enough specificity for the chief judge to determine whether the recusal is required under current rules. If recusal does not appear to be required under current rules, the presiding judge should disclose the circumstances to the parties and their counsel, and recuse unless asked to proceed.

PERPETUAL RECUSAL

We next turn to whether a judge may properly "perpetually recuse" in cases in which a particular advocate appears, because the advocate previously made derogatory comments about the judge on the record. We noted in JI-43:

    "Lawyers are trained to set aside their personal feelings in analyzing their client's case to find the best light that can be shone on it. Zeal and emotion are to be the servants of dedication to the client's best interests. Vigorous competition with the opposing side is encouraged but within rules. The ideal visualized is a genuinely hard-fought case left in the courtroom on decision day, along with any grudges or animosities. This ideal, that lawyers and judges can contend without lasting rancor, is at the core of our system." Emphasis added.

When a lawyer makes derogatory remarks about a judge which are outside the range of permissible advocacy, the judge has several options. The judge may initiate proceedings for contempt in the presence of the court. If the remarks suggest violations of MRPC 8.4(c) conduct prejudicial to the administration of justice, 3.5(c) undignified or discourteous conduct toward the tribunal, 4.1 knowingly making false statements of material fact or law, or other ethics rules, the judge may report the matter to the Attorney Grievance Commission. In certain circumstances, the judicial behavior complained about could be exonerated by upholding the judge's ruling on appeal. Just as the judicial office does not give the judge the right to engage in discourteous or indecorous behavior toward parties and their counsel, In re Kelly, 238 So 2d 565 (Fla 1970), In re Cox, 532 A2d 1017 (Me 1987), an advocate may not use the client's cause as an excuse to attack the judge.

To perpetually recuse because of comments made in one particular case or because of a personal dislike of an advocate would not be proper. A perpetual disqualification deprives the electorate of the judicial officer of choice. In districts with few judges, it increases the workload of the remaining judges and imposes administrative burdens on the judges and their staffs. When such "perpetual disqualifications" become known to the practicing bar, it provides opportunities for judge-shopping which would not otherwise be available. E.g., McCartney v. Commission on Judicial Qualifications, 526 P2d 268 (Cal 1974), systematic campaign by public defender's office to preclude a judge from handling criminal cases.

ASSOCIATION TO INSTIGATE RECUSAL

With regard to the conduct of lawyers who may take advantage of a "perpetual disqualification" by associating as co-counsel or referring cases to the targeted lawyer, such association or referral, when instigated with an eye toward affecting judicial assignments, is improper. As stated in JI-43:

    "[T]he disqualification or recusal of a judge causes some, often substantial, dislocation of resources and this, too, should be avoided. Finally, where human parties and advocates litigate in a human system before human judges, the temptation for judge-shopping and forum-shopping is great. If the threat of suit against a judge personally were grounds for mandatory recusal, the dockets would be increased by some unwarranted number (even if only one) of tactical strikes. An ethical rule should not unwittingly aid in that unethical practice."

Both the lawyer seeking the association or offering the referral, and the targeted lawyer would be violating MRPC 8.4(c) by participating in the scheme.

NOTE: See Robinson v. Boeing Co., 12 Law Man Prof Con 133 (CA 11 4/5/96) in which federal court denied party's right to hire additional counsel that would likely cause judge's recusal (a relative of the judge), in order to avoid unnecessary delay in the proceedings.

 
     

 

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