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ABA issues judges new guidance on relationships and recusals

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

ABA Formal Opinion 488 includes new guidance on judicial recusal.

ABA Formal Opinion 488 includes new guidance on judicial recusal.

Formal Opinion 488 explores three categories of relationships — acquaintances, friendships and close personal relationships — to assist judges determine what, if any, ethical obligations those ties create under 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. It added that it “depends on the circumstances” whether disclosure or recusal should occur if a party or lawyer in the case is a friend or shares a close personal relationship with the judge.

In its analysis, the opinion outlines the basis for the committee’s guidance for each of the categories. A judge and a lawyer, for instance, should be considered “acquaintances” when their interactions outside of court are coincidental and relatively superficial.

“Friendship” implies a greater relationship and suggests “some degree of mutual affection,” although the opinion noted that not all friendships are the same. “Some may be professional while others may be social,” it said. “Close personal relationships” might include a current or past romantic or intimate involvement, the opinion explained.

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 a rule that allows the parties and lawyers to agree to proceed despite the judge’s potential conflict.

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. Other ABA ethics opinions are available on the ABA Center for Professional Responsibility website.

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