Ethics Column: When to Recuse or Disclose?

When considering recusal or disqualification in a particular matter, a judge should also look to his or her own jurisdiction for specific rules and case law.  Most jurisdictions have adopted in part or completely the ABA’s Model Code of Judicial Conduct and, for this discussion, we can consider rule 2.11, which sets out a number of particular circumstances that should be examined, but generally states, “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned….”  Further, while not part of the rule itself, comment 2 advises, “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.”  This comment buttresses the idea that a judge’s ethical duty to self-examine and consider recusal always applies, even where no motion to disqualify has been filed.  Nonetheless, the core problem that exists with recusal is that, beyond certain “bright-line” disqualifying rules (such as financial or campaign interests, family relationships, or prior legal work as an attorney), a judge has wide discretion to decide if recusal is needed, and any ethical sanction for failing to recuse where a clearly disqualifying rule does not apply appears rare.  This discretion can often lead to cognitive errors or illusions that allow potential bias and partiality issues to be ignored or unconsciously overlooked by a judge, a point that is well-documented by academics who specialize in judicial psychology.  On the other hand, even where a judge may be inclined to recuse, such discretion may be hampered by counter pressures, such as the ethical duty to hear and decide cases that have been assigned (see rule 2.7) or even influences from supervising judges to not recuse and avoid administrative burdens on moving a case from one judge to another.  In many ways, a judge’s thoughts to recuse or not recuse can present a true dilemma.

Is there a third way?  Given particular factual circumstances, a judge may well conclude that disclosure in lieu of recusal is a better approach.  Disclose is defined more broadly than the duty to recuse and is reflected in the wording of comment 5 to rule 2.11: “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.”  The focus in comment 5 is on what the parties or their lawyers could reasonably consider relevant instead of only the judge, who makes a recusal decision in private.  Therefore, disclosure can enhance the goal of impartiality, as well as promote transparency, by giving the parties the opportunity to seek disqualification based on the disclosed information, seek additional information from the judge, waive disqualification, or appeal a judge’s decision to not disqualify.  As stated in the California Judicial Conduct Handbook (4th edition), at page 495, disclosure “serves the important role of reaffirming the integrity and impartiality of the judicial institution.  It provides the parties with the reassurance the judge has examined whether or not certain factors in regard to the case require recusal, that the judge has determined that recusal is not required, and that, in spite of that determination, the judge believes the parties and their counsel should be made aware of those factors.”

Ultimately, a judge’s decision to recuse or disclose is a lonely one.  However, by always keeping the idea at the forefront that a judge’s goal is to decide any matter impartially, the best decision will always be made.