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Opinion 223

A newly elected Superior Court Judge, sitting in a five (5) county, two (2) judge circuit, requests an opinion as to the appropriate length of time during which a judge is required to disqualify in cases wherein his former law partners appear as counsel.

This issue is governed by Rule 2.11. Section (A)(6) of that Canon requires disqualification in any case in which the judge served as a lawyer in the matter in controversy or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter. Thus, a judge should recuse in all proceedings in which a former law partner appears as counsel if the former law partner represented one of the parties during the period of the partnership. However, no such per se disqualification results if the former law partner did not represent the party in the matter in controversy while the judge was still engaged in the practice of law. Nevertheless, in the later instance, the language of Rule 2.11(A) requiring disqualification in any proceeding in which a judge’s impartiality might reasonably be questioned and the language of Canon 1 requiring the avoidance of the appearance of impropriety in all activities must not be overlooked.

Extensive research reveals only three (3) jurisdictions with definite time periods within which judges must automatically recuse in cases involving their former law partners, and these periods vary from two (2) years to five (5) years. No such rule has ever been promulgated in this State, and it is the opinion of this Commission that such a policy would likely be burdensome in many instances. Consequently, this Commission respectfully declines to specify a specific period of time within which a judge must automatically disqualify in cases involving a former law partner.

Rather, the following general guidelines are deemed appropriate:

A judge should recuse in any case in which a former partner appears until a sufficient period of time has elapsed which will avoid the appearance of impropriety. The test for impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

Among other factors to be considered in reaching such a decisions are: the length of the prior association; the size of the former law firm; the amount of time which has elapsed since the judge left the firm; whether the judge and the remaining members of the firm maintain a close relationship; whether there are any existing financial arrangements between the judge and the former firm; the size of the community in which the original practice was conducted; and the case load and burden, if any, such continued disqualification places on other judges in the circuit.

After careful consideration of all these factors, each individual judge must ultimately decide when reasonable minds would no longer question his or her impartiality and integrity. However, so long as the judge entertains any doubt whatsoever as to impartiality or believes that under the particular circumstances impartiality might reasonably be questioned, recusal would be in order.

Finally, attention is directed to the Commentary [2] of Rule 2.11 suggesting disclosure on the record of information that the court believes the parties or their lawyers might consider relevant to the question of disqualification and to the remittal procedures outlined in Rule 2.11(C).

[Pertinent Code of Judicial Conduct provisions: Canons 1, Rule 2.11(A), Rule 2.11(C). Cross reference to other relevant opinions for review: #182, #187, #188, #192, #218.]

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