2013-46
(Emergency Staff Opinion issued November 8, 2013)
Appearance of Impropriety;
Disclosure/Disqualification; Bias & Prejudice Rules
1.2 & 2.11; Practice Book §1-22; General Statutes
§51-51k
Issue: A complaint against a Judicial
Official was filed with the Judicial Review Council
(hereinafter, JRC). May a Judicial Official preside
over a trial involving an attorney who is a member
of the Judicial Review Council?
Facts: The complaint has not yet
been reviewed by the JRC. A lawyer who is a member
of the JRC is scheduled to start a trial before the
Judicial Official while the complaint is pending.
If the trial goes longer than anticipated, the
hearing on the trial will be continued to a date
after the JRC has reviewed the complaint.
Applicable Rules:
Rule 1.2 states 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, in relevant part, as follows:
(a) 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….
(c) A judge subject to
disqualification under Rule, other than for bias or
prejudice under subsection (a)(1), may ask the
parties and their lawyers to consider, outside the
presence of the judge and court personnel, whether
to waive disqualification, provided that the judge
shall disclose on the record the basis of such
disqualification. If, following the
disclosure, the parties and lawyers agree, either in
writing or on the record before another judge, that
the judge should not be disqualified, the judge may
participate in the proceeding….
(e) A judge is not automatically disqualified
from sitting on a proceeding merely because a lawyer
or party to the proceeding has filed a lawsuit
against the judge or filed a complaint against judge
with the judicial review council. When the
judge becomes aware that such a lawsuit or complaint
has been filed against him or her, the judge shall,
on the record, disclose that fact to the lawyers and
parties to the proceeding before such judge and
shall thereafter proceed in accordance with Practice
Book Section 1-22 (b).
Practice Book § 1-22(b) states as follows:
(b) A judicial
authority is not automatically disqualified from
sitting on a proceeding merely because an attorney
or party to the proceeding has filed a lawsuit
against the judicial authority or has filed a
complaint against the judicial authority with the
judicial review council. When the judicial
authority has been made aware of the filing of such
lawsuit or complaint, he or she shall so advise the
attorneys and parties to the proceeding and either
disqualify himself or herself from sitting on the
proceeding, conduct a hearing on the
disqualification issue before deciding whether to
disqualify himself or herself or refer the
disqualification issue to another judicial authority
for a hearing and decision.
Conn. Gen. Stat. § 51-51k (j) states that the
Judicial Review Council shall adopt regulations “to
provide standards for the identification of and
procedures for the treatment of conflicts of
interest for council members, which standards shall
require that any professional or ethical codes of
conduct shall apply to any professional member of
the council subject to such codes of conduct.”
In accordance with that statutory provision, the JRC
adopted Regulation § 51-51k-13, entitled conflicts
of interest. Subsection (a) states that any
member of the JRC who has a conflict of interest in
any matter before the Council shall be disqualified
from participating in any proceeding of the Council
in that matter. Subsection (b) states, in
part, that a member shall have such a conflict of
interest when such member, his or her spouse, his or
her child, or his or her business associate “(6) is
an attorney who has any matter pending in a trial
court or an appeal court involving a respondent
against whom a complaint has been made”.
Emergency Staff Opinion: The inquiry was circulated
to the Committee members. Input was solicited and
received. Based upon the facts provided, including
that a complaint is pending and that the attorney is
disqualified from participating in the JRC
proceeding involving the inquiring Judicial
Official, the Judicial Official was advised that
he/she is not automatically disqualified from
hearing the case. If the Judicial Official does not
recuse himself or herself, the Judicial Official
should follow the same procedure that would apply if
the attorney member of the JRC were a complainant
before the JRC. In particular, the Judicial
Official should disclose on the record that a
complaint was filed, that the attorney is a member
of the JRC, but as the Judicial Official understands
it, is disqualified from participating in the
complaint against the Judicial Official, and then
proceed in accordance with Practice Book § 1-22 (b).
Committee on Judicial Ethics
