September 05, 2019

ABA issues new guidance for judicial recusal based on relationships with others

CHICAGO, Sept. 5, 2019 — The American Bar Association Standing Committee on Ethics and Professional Responsibility released today detailed recommendations for when judges should decide to disqualify themselves from a case because of their relationships with lawyers or involved parties.

Formal Opinion 488 explores three categories of relationships — acquaintances, friendships and close personal relationships — to assist judges in determining what, if any, ethical obligations those relationships create under Rule 2.11 of the ABA Model Code of Judicial Conduct.

“Judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties,” the opinion said. “Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties, depends on the circumstances.”

In its analysis, the opinion outlines the basis for the committee’s guidance for each of the categories. “Friendship,” for instance, implies a greater relationship than mere acquaintanceship, where interactions “outside of court are coincidental or relatively superficial.” “Close personal relationships” might include a current or past romantic or intimate involvement.

The opinion says that “judges are ordinarily in the best position to assess whether their impartiality might reasonably be questioned.” In all cases, it added, disqualification may be waived under Rule 2.11(c) of the model code.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Recent ABA ethics opinions are available on the ABA Center for Professional Responsibility website.

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