2013-19 (May 20, 2013)
Disclosure/Disqualification; Transition to the Bench; Attorneys
Rules 1.2 & 2.11
Issue:
A Judicial Official, prior to taking the oath of office, referred all pending case matters from his or her law practice to various attorneys without a referral fee. Does the Judicial Official have a duty to disclose or recuse if any attorney to whom the Judicial Official referred one or more cases appears before the Judicial Official? If so, is there a time after which the Judicial Official no longer has to disclose or recuse him/herself?
Response: Rule 1.2 of the Code of Judicial Conduct provides that a judge “shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”
Rule 2.11 states that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including, but not limited to, the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of the facts that are in dispute in the proceeding.…”
Based on the facts presented, including that the referrals occurred within the last year and that the Judicial Official has no economic interest in the referral relationships, the Committee unanimously determined that the Judicial Official is not automatically disqualified from presiding over future cases involving any attorney to whom the Judicial Official previously referred a case while in private practice, subject to the following conditions:
- The case is not one that was referred to the attorney by the Judicial Official;
- The Judicial Official does not believe that he or she has any personal bias (favorable or unfavorable) involving the client or the attorney; and
- The Judicial Official should disclose the referral relationship for a reasonable period of time, which is not less than two years from the date of the Judicial Official’s commencement of service as a judge. See JE 2011-25 & JE 2008-21.
