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Opinion 54

The Judicial Qualifications Commission has been requested to give an opinion as to whether a judge is required to disqualify himself from presiding in any matter in which an attorney who has represented him in the past, or any of the partners of such attorney, appears as counsel. The Commission understands that the representation has been terminated.

Rule 2.11(A) provides in 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, or personal knowledge of disputed evidentiary facts concerning an impending matter or a pending proceeding.

(2) The judge is within the third degree of relationship to any of the following listed persons, or the judge’s spouse, domestic partner, intimate partner, or any other member of a judge’s family residing in the judge’s household is within the third degree of relationship to any of the following persons:

(a) a party to the proceeding, or an officer, director, or trustee of a party;

(b) a lawyer in the proceeding;

(c) a person known by the judge to have a more than de minimis interest that could be substantially affected by the outcome of the proceeding; or

(d) a person who to the judge’s knowledge is likely to be a material witness in the proceeding. 

Prior representation of the presiding judge by a lawyer involved in a case is not expressly enumerated in the Canon as a ground for disqualification, and it is the opinion of the Commission that such prior representation does not, in and of itself, require disqualification.

As a practical matter, a judge who is personally involved in legal proceedings must obtain legal representation, and would normally be expected to do so from among the members of the bar practicing in his own circuit. The lawyer employed to represent the judge would certainly be expected thereafter to continue the practice of his profession in his home circuit; and disqualification of the judge in all matters in which such lawyer or his partners are involved would cause serious practical difficulty, particularly in a circuit with only one or two judges.

These facts would in the opinion of the Commission be understood by reasonable men, and such prior representation would not afford, per se, a reasonable basis for questioning the judge’s impartiality in subsequent proceedings in which such lawyer (or a partner) is involved.

If additional circumstances exist which, considered along with such prior representation, would afford a reasonable basis for questioning the judge’s impartiality then he should, of course, disqualify himself.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(C), 2.11(A). Cross reference to other relevant opinions for review: #71, #119, #128, #135, #136, #142, #153, #182.]

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