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Litigation Journal

Summer 2022 | Experience Black

Dealing with a Biased Judge

Michael P Downey


  • Rule 8.3(b) requires lawyers to report a judge who has committed a violation of the judicial canons.
  • Lawyers make the final determination about what means should be used to pursue the client’s objectives.
  • If a client insists upon taking repugnant actions, you can terminate the representation under Rule 1.16(b)(4).
Dealing with a Biased Judge
Andrii Yalanskyi via Getty Images

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“I am representing a client in a divorce before Judge Bench,” Paradox said to Ethox. “The client’s spouse is now in a relationship with a Black person, and several times the judge has referred to the significant other as ‘the Black man.’

“My client believes Judge Bench is prejudiced and wants to use that prejudice to our advantage. What should I do?”

“Asking me this question suggests you are hesitant to do what your client asks,” Ethox responded. As Paradox nodded, Ethox continued, “And the legal ethics rules support your hesitancy.”

“They do?” Paradox asked with relief.

“Yes. ABA Model Rule 8.4(g) prohibits a lawyer from engaging in conduct that the lawyer knows or reasonably should know is harassment or discrimination, including discrimination or harassment based on race,” Ethox answered. “The comment to Rule 8.4(g) explains that discrimination includes ‘harmful verbal or physical conduct that manifests bias or prejudice towards others.’ Such conduct must be avoided, the comment further explains, because it undermines confidence in the legal profession and legal system—a harm that the opposing party’s significant other would certainly suffer.”

“What should I do?” Paradox asked.

“Rule 1.4(a)(5) requires a lawyer to consult with a client about the limitations on a lawyer’s conduct when the lawyer knows the client expects assistance not permitted by the rules of professional conduct or other law,” Ethox answered. “So you are going to need to tell your client that Rule 8.4(g) prohibits the tactic the client wants.”

“And if the client presses me further,” Paradox asked, “am I required ultimately to do what the client wants?”

“No. Rule 1.2(a) states that a lawyer must abide by a client’s directions regarding the objectives of the representation,” Ethox answered, “but not the means by which those objectives are pursued. As the professional, you make the final determination regarding what means should be used to pursue the client’s objectives.

“If the client continues to demand that you pursue a course of action that would violate Rule 8.4(g), or any rule,” Ethox continued, “you will be required to withdraw, consistent with Rule 1.16(a)(1), since the representation will result in violation of the rules of professional conduct or other law. But usually it does not reach that point.”

“Why is that?” Paradox asked.

“Because the threat that a lawyer may withdraw often checks the client’s improper impulses,” Ethox answered.

“What if my client continues to push me to use the judge’s bias. Can I tell the client to stop?” Paradox pressed.

“Absolutely,” Ethox answered. “In fact, Rule 2.1 specifically permits a lawyer to raise consideration of moral, economic, social, and political factors relevant to the client’s situation.

“Also, if the client continues to insist upon taking actions you consider repugnant, you can terminate the representation under Rule 1.16(b)(4).”

“OK,” Paradox responded, seeming assured. “I feel pretty good about my options in dealing with the client. But do I also have a duty to report Judge Bench for the inappropriate statements?”

“Rule 8.3(b) requires lawyers to report a judge who has committed a violation of the judicial canons when that violation raises a substantial question about the judge’s fitness for office,” Ethox answered. “I may need to learn more about what Judge Bench has said and how Judge Bench has acted in the case and treated the boyfriend before I know for sure.

“Judge Bench may have violated a number of ABA Canons of Judicial Conduct, including manifesting bias or prejudice based on race, a potential violation of Canon 2.3(B). I do think I need to know more about the nature, gravity, and frequency of Judge Bench’s actions, but this is likely something you need to report.”

“If it is, I sure hope you will help me,” Paradox sighed, “because it seems very dangerous to report a judge for unethical conduct.”

“I agree with your assessment,” Ethox said, “and will definitely help you with this tricky situation.”