A practicing attorney who expects to run against an incumbent Superior Court judge in the next election seeks an opinion as to whether such announced candidacy would require recusal by the incumbent judge in all cases in which such attorney might appear. Although similar questions have been previously addressed by the Commission, the precise issue raised by this request appears to be one of first impression.
Nevertheless, the issue of disqualification is governed by Rule 2.11(A) which provides that judges should disqualify in proceedings in which their impartiality might reasonably be questioned, including, but not limited to, enumerated instances which do not include, as a per se ground for disqualification, the fact that counsel is an announced candidate for the judicial office then held by the trial judge. In addition, in Opinion No. 135, the Commission concluded that the filing of a lawsuit against the trial judge by an attorney for a party did not require automatic recusal in all cases in which such attorney appeared as counsel of record.
At the same time, if a judge is in fact biased or prejudiced toward a party and/or counsel because such counsel is seeking the judicial office then held by such judge, or for any other reason, or if, in addition to the political contest, other related circumstances are such that the judge’s impartiality might reasonably be questioned, said judge has an affirmative duty to recuse, and a failure to do so may be challenged in the appropriate forum.
[Pertinent Code of Judicial Conduct provisions: Rule 2.11(A). Cross reference to other relevant opinions for review: #119 #135, #187, #188, #198.]