2009-40 (December 23, 2009)
Disclosure/Disqualification; Writing; Canons 2 & 3

Issue: Several years ago a Judicial Official, at the request of the co-author of a hornbook on a particular area of Connecticut law, wrote a prologue to the hornbook. The prologue basically provides a general description of how a judge views that particular field of law. In the prologue, the Judicial Official made some very laudatory remarks about the other co-author, who is a partner in a law firm that handles a significant number of cases involving the subject matter of the book, and also described the hornbook as having been for years the authoritative source on its subject. The Judicial Official inquired whether, if either of the co-authors or members of their respective firms appear before the Judicial Official, he or she is outright disqualified from hearing the case or, alternatively, is obligated to disclose to all parties that he or she wrote the prologue.

Response: Based upon the facts presented, the Committee members present unanimously concluded that Canon 3’s objective test for disqualification did not require the Judicial Official to disqualify himself or herself automatically when either co-author or members of his or her respective law firm should appear before the Judicial Official provided that the Judicial Official has determined that he or she can be impartial. Canon 2’s directive to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, however, requires the Judicial Official to disclose his or her authorship of the prologue to all appearing counsel/parties when either of the co-authors or members of their respective firms appear before the Judicial Official. If a party or counsel thereafter moves to disqualify the Judicial Official based upon the disclosure, the Judicial Official, after considering the facts, law and argument of counsel, must exercise his or her discretion in deciding whether to grant the motion. Issues to consider in determining such a recusal motion include, but are not necessarily limited to, the nature of the proceeding or docket, whether reference to or reliance upon the hornbook is foreseeable, whether the Judicial Official is the sole decision maker (i.e. whether the matter is to the court or a jury) and whether self-represented parties or lawyers are involved.