July 01, 2013 Judicial Ethics

Is Judicial Disqualification an Issue of Ethics or of Law?

By Marla N. Greenstein

As a judicial ethics professional who fields ethical questions from judges daily, I experience few weeks where judges do not call with questions surrounding judicial disqualification and disclosure issues. While many specific disqualifying interests are listed in statutes and the various Codes of Judicial Conduct, every jurisdiction has some form of ABA Rule 2.11 requiring disqualification where “the judge’s impartiality might reasonably be questioned.” While an objective standard, it is far from clear in any given situation. The articles in this issue explore the evolution of this standard and how it has been applied.

Richard Flamm’s “The History of Judicial Disqualification in America” sets the context. By understanding its historical underpinnings, we come to a better understanding of how to apply concepts of impartiality today. More often than not, impartiality has been determined to be freedom from financial interests in the matters before the court. Those historical underpinnings are examined in post-Caperton America by the conversation between Judge N. Randy Smith and Robert Peck. In the post-Caperton world, it is not only the financial interest in the proceeding itself, but also an assumption of probable bias based on financial contributions affecting the judge’s campaign for judicial office.

As ethical standards have evolved, we have also become sensitive to relationships that affect the public’s view of a judge’s impartiality. And here is where most judges are in a quandary. We know if it is a close family member, the Code of Judicial Conduct and related statutes preclude a judge from hearing the matter. But what if a witness is the judge’s neighbor? Or what if the victim was the childhood friend of the judge’s niece?

Relationships with parties to a proceeding are not the only relationships that raise questions. Typically, many judges’ friends are lawyers. Does a close friendship with a lawyer appearing before you create that situation where the judge’s impartiality might reasonably be questioned? Cynthia Gray’s thoughtful look at how various ethics opinions address this issue provides helpful guidance. The citations and footnotes to this article provide a good resource for a state-by-state analysis as well.

While the easiest defensive response to avoid disqualification questions is to divest all investments and have no relationships, we know that judicial isolation is not an answer. Judges are encouraged to maintain an active life in the community and have a responsibility to represent the judiciary in a positive light in all activities. (Rule 1.2 ABA 2007 Model Code of Judicial Conduct, “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.”) Comment [6] to Rule 1.2 “Promoting Confidence in the Judiciary” promotes outreach activities explicitly in furthering this objective. In “The New Tradition of Judicial Outreach: Survey Evidence from the States,” Elisha Carol Savchak and Amanda Ross Edwards summarize interesting research as to how judges view this role. It is clear that the vast majority of judges have figured out a way to have a meaningful community presence without jeopardizing the needed appearance of impartiality.

Finally, our Waymaker interview with Judge Thelton Henderson provides a singular example of a judge who has led a life of strong advocacy before ascending to the bench, maintained a leadership role in the community after, and enhanced his appearance of impartiality. His advice is likely the best: “Trust your instincts.”