Judicial recusal is a two-way street with responsibilities imposed on both judges and litigators. A judge or justice should sua sponte recuse when aware of a disqualifying conflict. A litigator has an obligation to take adequate actions to determine whether the judicial officer presiding over the case is free of such a conflict, regardless of the judicial officer’s silence on disqualification.
The recusal touchstone is “[t]he Due Process Clause ‘may sometime bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, “justice must satisfy the appearance of justice.”’” Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 825 (1986) (quoting In re Murchison, 349 U.S. 133 (1955)). The recusal question is whether, “‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’” Caperton v. AT Massey Coal Co., Inc., 556 U.S. 868, 870 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).
“A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. . . .” Model Code of Jud. Conduct r. 2.11(A) (Am. Bar Ass’n 2020) (Disqualification). “A judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.” Id. r. 2.11 cmt. 2.
Often overlooked by both judicial officers and litigators alike is the ethical responsibility of a judge or justice to disclose to the parties’ counsel potential questions regarding his or her impartiality in the matter even though the judicial officer has determined the questions do not require recusal. “A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.” Id. r. 2.11 cmt. 5.
This disclosure comment is admittedly not a rule of judicial conduct. As the Code explains, “the Comments identify aspirational goals for judges. To implement fully the principles of this Code as articulated in the Canons, judges should strive to exceed the standards of conduct established by the Rules, holding themselves to the highest ethical standards and seeking to achieve those aspirational goals, thereby enhancing the dignity of the judicial office.” Id. Scope 4.
A judicial officer’s responsibility to disclose potential recusal information has two separate components: first, where a judicial recusal motion or judicial disclosure motion has caused the judge to recall information relevant to the disqualification issue but apparently not known to the party seeking recusal and, second, where the judge is aware of information relevant to his potential disqualification even though that information does not relate to a pending recusal motion or request for disclosure of specific information.
The ABA Code of Judicial Conduct has been adopted in whole or in part in many jurisdictions. This type of adoption usually includes this judicial disclosure comment. For example, see Ky. Code of Jud. Conduct, Rules of the Ky. Sup. Ct. (SCR) 4.300, Canon 3E(1) Commentary.
Litigators should be familiar with their own jurisdiction’s incorporation into its judicial conduct code of this disclosure requirement or its complete adoption of the ABA’s Model Code in its entirety. However, litigators should never assume the judicial officer presiding over their case is aware of this aspirational disclosure goal. Instead, to prompt a judge to comply with his or her ethical obligation to disclose, counsel should file a motion informing the judge of that ethical procedure of disclosure and describing the parameters of that duty, noting the court’s lack of disclosure as to that point in the proceedings. “The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause....” Model Rules of Pro. Conduct r. 3.1 cmt. 1 (Am. Bar Ass’n 2024) (Meritorious Claims & Contentions).
Some judicial officers may balk at such a motion, arguing that it is unnecessary to inform a judge or justice of a process that should be known to any judicial officer. However, when nothing has been placed on the record to demonstrate to counsel that the court is aware of this disclosure obligation, counsel would be remiss not to ensure the judicial officer is aware of the need for this type of recusal disclosure.
Two simple motion approaches are available. The unadorned reminder version informs the judicial officer of this ethical approach to disclose to the litigants information the judge believes parties or lawyers might consider relevant to the disqualification question, even though the judge believes there is no real basis for disqualification. In the “specific inquiry” version, in addition to informing the judge of the ethical disclose obligation, the motion presents factual aspects of the case that could trigger or prompt the judge into recalling information that litigators may consider relevant to disqualification. Such a motion also provides a key to the judge as to what information the movant considers relevant to disqualification. This second version, the “specific inquiry” motion, should always contain a “catch-all” provision that requests the judicial officer to provide any relevant recusal information even if it is not relevant to the specific areas discussed in the motion.
“‘Reading the text of Canon 3E governing disqualification with the Commentary governing disclosure, it appears that a distinction has been made between the two circumstances.’” Inquiry Concerning a Judge, No. 96-30, Re: Richard H. Frank, 753 So. 2d 1228, 1239 (Fla. 2000). “[I]t appears that the standard for disclosure is lower” than the standard for disqualification. Id. “In other words, a judge should disclose information in circumstances even when disqualification may not be required.” Id. “This commentary [to Canon 3E(1)] reveals a separate obligation to disclose that is broader than the duty to disqualify.” In the Matter of Joseph G. Edwards, 694 N.E.2d 701, 711 (Ind. 1998).
“The Commentary to Canon 3E(1) provides that a judge should disclose on the record information which the judge believes the parties or their lawyers might consider relevant to the question of disqualification.” Porter v. Singletary, 49 F.3d 1483, 1489 (11th Cir. 1995). “[L]itigants and attorneys should be able to rely upon judges to comply with their own Canons of Ethics.” Id. “‘[G]iven the seminal importance of [judicial] impartiality, both in fact and in appearance, . . . judges should disclose any information that the parties or their lawyers might consider relevant to the disqualification issue.’” Inquiry Concerning a Judge, 753 So. 2d at 1239.
Judicial disclosure of matters that a judicial officer believes the parties may find relevant to disqualification is not met by a general disclosure to the public of circumstances that the judge does not find requires sua sponte recusal in any litigation. General disclosure includes, for example, the Ethics in Government Act of 1978 (EIGA), which established financial disclosure reporting requirements for the justices of the US Supreme Court. The justices must file publicly available financial disclosure statements that report certain financial transactions.
The ethical disclosure procedure calls on the judge to disclose, not to the general public but to the lawyers in a specific case, that, although the judge does not consider the information mandates recusal in this particular case, the lawyers may disagree and assume it is a basis for disqualification in this matter. This does not preclude a litigant’s counsel from examining general judicial public disclosures, such as those required by the EIGA, to ascertain whether those disclosures contain possible grounds for recusal or at least disclosure in a particular case. Counsel has a duty to ensure the judicial officer presiding over the client’s case has impartiality that is beyond being reasonably questioned.
General disclosures to the public of matters, such as financial transactions, are needed for transparency and accountability to the public, but fall short of meeting a judicial officer’s disclosure of potential recusal information in an individual case. General disclosure is an inadequate alternative to a judge disclosing potential recusal information that the judge has unilaterally decided does not mandate disqualification in a specific case. A judge should not be able behind closed doors, off the record, silently to rule on and reject a potential disqualification factor and deprive litigants of any knowledge of that decision. Rule 2.11, Comment 5, of the ABA Judicial Code endorses that principle of judicial integrity and impartiality.
A litigator needs a methodology of judicial recusal that includes knowing a jurisdiction’s statutes, procedural rules, decisional law, code of judicial conduct, and judicial ethics opinions that pertain to judicial disqualification. That methodology also should include a strategy for determining whether a judicial officer should be recused—and a judicial disclosure motion should always be part and parcel of that approach. A litigator has an ethical and constitutional obligation to ensure that the judicial officer presiding over the client’s case is fair and impartial and devoid of an actual conflict. A litigator should not simply rely on the judicial officer self-policing his or her need to recuse from a case.
