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Opinion 135

The Judicial Qualifications Commission has been asked for an opinion with respect to the following questions:

(1) Whether a judge is required to recuse herself in all cases in which an attorney who has filed a lawsuit against her appears as counsel of record; and

(2) Whether, even if not required to recuse herself, she is better advised to do so; and

(3) Whether, in view of the fact that the chief public defender, although not a party plaintiff, appeared as counsel of record in the suit against her, would she be required to disqualify in all cases handled by the public defender’s office; or

(4) If not, would any disclosure be required in such cases.

Rule 2.11 provides in pertinent part as follows:

(A) Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, or in which: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer….

The fact that an attorney for a party has sued the judge is not enumerated as a ground for disqualification and in the opinion of the Commission is not per se ground under any and all circumstances.

At the same time, if the judge is in fact prejudiced against the lawyer, or under all the circumstances, his impartiality might reasonably be questioned, then the judge should disqualify.

As to the third and fourth questions, as the commentary points out, lawyers in governmental agencies do not necessarily have associations with other agency lawyers within the meaning of the Canon, but, if the judge is in fact prejudiced, or can reasonably be seen to be so prejudiced, the result should be the same.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(B), 2.11(A). Cross reference to other relevant opinions for review: #54, #71, #119, #128, #136, #142, #182, #204.]

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