chevron-down Created with Sketch Beta.
March 17, 2020 Top Story

Ethical Obligations Requiring Judicial Recusal

Committee finds judges are best suited to determine recusal

By Josephine M. Bahn

The ABA Standing Committee on Ethics and Professional Responsibility has issued an opinion addressing when judges are required to recuse themselves from a case because of familial or personal relationships with one of the parties. In doing so, the committee analyzed the ABA’s Model Code of Judicial Conduct Rule 2.11.

The degree of acquaintanceship matters

The degree of acquaintanceship matters

iStockphoto by Getty Images

The committee determined that judges are best suited to determine whether recusal is necessary and divided the analysis into three categories: acquaintanceships, friendships, and close personal relationships. Each decision is fact-based and relies on the individual to determine if a material relationship exists to warrant either disclosure or recusal. ABA Section of Litigation leaders say the rule interpretation serves as a reminder to judges to maintain compliance with professional conduct rules.

Judicial Recusal May Prove Necessary

In Formal Opinion 488, the committee described three relationships between judges and lawyers or other parties to assist judges in evaluating ethical obligations those relationships may create under Rule 2.11. The three categories are acquaintanceships, friendships, and close personal relationships.

Acquaintanceship. The committee found that judges are not required to recuse themselves or even disclose the relationship if the lawyer or party is an acquaintance. Merely going to the same house of worship, gym, or civic organization is not sufficient to rise to the level of disclosure or recusal. The committee further noted that even having previously served as co-counsel with a lawyer before taking the bench is not sufficient to rise above this standard.

Friendship. The committee reasoned that varying degrees of friendship imply a greater degree of affinity, however. Finding that casual friendships, where you meet for the occasional coffee or have the occasional catch-up call, are much different than those where a judge and lawyer or party routinely spend time together, vacation together, or have a mentor-mentee relationship. The committee opined that only situations where the judge’s friendship with the lawyer or party may call into question his or her impartiality require disqualification.

Personal Relationship. The committee found that personal relationships beyond friendship could implicate Rule 2.11. Specifically, the judge may be romantically involved with or desire a romantic relationship with a lawyer or party; the judge and lawyer or party may be amicable ex-spouses; or the judge might play a significant role in the lawyer’s or party’s child’s life. Here, the committee reasoned that a desire for a romantic relationship or ongoing romantic relationship required recusal, but that other intimate or personal relationships with a lawyer or party might only require disclosure. The judge must consider the individual circumstances of the relationship.

The committee warned against using relationships between judges and lawyers or parties as a method of forum shopping, thus creating an advantage in litigation. Noting that judges should look at each relationship and set of facts before making a determination on whether to disclose, recuse, or take no action, the committee reiterated that each situation is different, and each decision depends entirely on the circumstances.

Protecting Judicial Integrity

Section of Litigation leaders applaud the committee’s guidance. By taking a moderate approach, the committee diverged from most jurisdictions who “entrust judges to make the determination on disqualification but provide very little guidelines on when disqualification is warranted. Formal Opinion 488 attempts to create some structure,” says Michael S. LeBoff, Newport Beach, CA, cochair of the Section’s Professional Liability Litigation Committee.

“Now there may be small towns where there is only one judge and the judge knows everyone. And in today’s social media world, a judge may have lots of ‘friends’ that are not that close. Avoiding the appearance of impropriety remains a tried-and-true standard and every judge is obliged to evaluate each case,” opines John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee.

By taking a moderate approach, the committee “gave information on how to interpret various relationships in which judges should recuse themselves or disclose relationships,” says Emily J. Kirk, Ontario, CA, cochair of the Section’s Solo & Small Firm Committee, without boxing them into a one-size-fits-all standard.


Josephine M. Bahn is an associate editor for Litigation News.

Hashtags: #LawPractice #Ethics #LawTwitter

Related Resources

Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).