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Litigation News

Litigation News | 2020

Judicial Bias May Implicate Lawyer’s Ethical Obligations

Kelso Lorne St. Jacques Anderson


  • In a state appellate court ruling, the trial judge's comments during oral arguments led to the granting of a petitioners' writ of prohibition seeking to disqualify the judge.
  • The exchange between the trial court and counsel raised concerns about judicial bias and prejudging the case, violating legal rules and principles as well as judicial canons.
  • The trial judge's conduct triggered ethical obligations for the counsel, who should be prepared to address potential judicial misconduct and protect their client's rights to competent and diligent representation.
Judicial Bias May Implicate Lawyer’s Ethical Obligations Pivovarov

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A judge’s expression of bias toward a litigant necessarily implicates judicial canons prohibiting such conduct. But, according to ABA Section of Litigation leaders, such conduct should also prompt counsel for the affected litigant to consider his or her ethical obligations to act competently and diligently toward representing the client. Section of Litigation leaders cite the decision Real State Golden Investments, Inc. v. Larraín as a cautionary tale in this regard.

A Clear Example of Judicial Bias

In a per curiam ruling, a Florida appellate court in Real State Golden granted the petitioners’ writ of prohibition seeking to disqualify a trial judge after the judge made comments during oral arguments on a motion to intervene. During the hearing, the trial judge had preemptively denied a motion to stay the pleadings, despite the fact that the petitioners had not filed or even suggested they would file such a motion. The exchange between the trial court and counsel for the petitioners went as follows:

Court: So, it’s denied and Motion to Stay, denied.

Counsel: There was no Motion for Stay.

Court: There will be. You’re going to appeal this, right?

Counsel: Probably.

Court: Okay. So, I mean, I expect it because everything gets appealed.

Counsel: Correct.

Court: For this case, anyway.

Counsel: You know, Your Honor, there has only been one appeal so far in this six-year case.

Court: Okay. Maybe I am thinking of other cases.

Counsel: I think so.

Court: Again, I get a lot of appeals. But then again, this is a very litigious world. Okay. If there is an appeal, I don’t think there’s a reasonable chance of success on appeal now that we have conducted this full analysis and identified the different issues and different claims and claims for a positive relief, not just defenses. So, draft up an order and we’ll see what happens.

Expression of Bias Violates Judicial Canons

The petitioners sought to disqualify the trial judge based on the foregoing exchange. Concluding that the petitioners had an “objectively reasonable fear they would not receive a fair trial,” the appellate court quoted law for the proposition that “a judge’s announced policy or predisposition to rule in a particular manner is grounds for disqualification.” The court also cited law for the principle that a judge may not pre-judge a case though he or she may “form mental impressions and opinions during the course of the case.” Finally, the court concluded that recusal is proper where a trial judge expressed judicial bias, as here.

In addition to violating the foregoing laws and principles cited by the court, Section leaders conclude that the trial court also violated judicial canons. “ABA Model Code of Judicial Conduct applies to all full-time judges,” observes John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee. Among the judicial canons violated by the trial judge are Model Code of Judicial Conduct Rules 1.2, 2.2, and 2.3, Barkett notes. “The disposition of a motion that has not yet been filed is the paradigm of judicial bias and prejudice,” he concludes.

Agreeing with Barkett that Rules 1.2, 2.2, and 2.3 were violated in Real State Golden, Jeanne M. Huey, Dallas, TX, cochair of the Web Content Subcommittee of the Section’s Ethics & Professionalism Committee, reminds attorneys that “it is not always improper for a judge to talk about case management with counsel.” Here, however, the trial judge “abandoned the neutrality required by his office to make rulings only on what is before him,” Huey observes.

Counsel’s Ethical Obligations Triggered

In addition to violating ensconced legal rules and principles, the judge’s conduct required counsel for the aggrieved litigant to consider counsel’s ethical obligations to the aggrieved client, according to Huey. Model Rules of Professional Conduct Rule 1.1 and 1.3—which require a lawyer to represent his or her client competently and diligently—were triggered by the judge’s conduct, Huey says. She opines that the trial court’s message to counsel from its ruling was that the “fix was in” against counsel’s client, “so don’t bother doing your job since it will come to naught.”

Huey emphasizes that “if the lawyer is intimidated into inaction by this kind of judicial misconduct, they may be robbing the client of the client’s right to competent and diligent representation under ABA Model Rules 1.1 and 1.3. A lawyer’s duty of competence and diligence is magnified in situations of judicial misconduct because of the significant risk of harm to the client and even the public,” she says.

Huey advises lawyers to consider a three-pronged approach to dealing with potential judicial misconduct: (1) know the rules concerning remedies for judicial misconduct in the courts in which one practices; (2) do not wait for judicial misconduct to occur before learning the appellate or recusal process in the jurisdictions in which one practices; and (3) ensure any questionable conduct by the judge is on the record.

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