23.15.02. Situations where judge must disqualify

There are certain situations where, as a matter of policy, it is presumed that a judge’s impartiality would be compromised if the judge sat on the case.  Rule 2.11(A) sets out 9 situations where the judge must recuse:

Judge has a personal bias against a party or party’s lawyer or  personal knowledge of facts in dispute.[1]  If the facts indicate that the judge has a personal grudge against a party/party lawyer or would be a fact witness in the case – the judge must recuse. 

Judge or someone related to the judge is involved in the proceeding.[2]  If the judge, the judges spouse, child, grand-child, parent, brother, sister, aunt, uncle, grandparent, or great-grandparent is in one of the following positions in the case the judge must recuse:  a party to the proceeding (or an officer/director of a party); a lawyer in the proceeding; has more than a “de minimis”interest that would be affected by the outcome of the case; or is likely to be a material witness in the case.  Of course the concern is that if someone related to the judge appears before them – a reasonable person would believe it would be impossible for the judge to be impartial.

Judge, someone related to the judge, or member of the judge’s family residing in the judge’s household has a financial interest in the outcome of the case or in a party to the case.[3]  A person is considerd a “member of the judge’s family” if they are either related to the judge or are “treated by the judge as a member of the judge’s family”[4] and reside with the judge.  The interest must be more than de minimis to require automatic disqualification.

Where a judge learns that a party or a party’s lawyer (or the lawyer’s firm) contributed some threshold amount to the election campaign of the judge.  The concern is that there could be appearance of partiality if the judge happens to rule in favor of the party whose side gave above a certain threshold to the judge’s election campaign.  The CJC does not set out the threshold amount that requires disqualification – leaving the amount to the state to decide.  Of course a critical element is that the judge “knows” that the contribution was made.  If the judge is not aware who the contributors are and it is not brought to her attention, there is no obligation to recuse.

Where the judge (either as a judge or judicial candidate) made statements that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.  Recall that it is improper for a judge (or judicial candidate) to make statements that would impair/appear to impair the outcome of a particular case.  The section says that if a judge has made those statements then the judge must recuse if the case is subsequently assigned to the judge.  Note, however, that recusal is not required if the states a position about how the case should come out in a judicial opinion.

Where the judge served as a lawyer in the case or, while the judge was at a law firm, someone else in the firm participated substantially in the case.  This requirement is self-explanatory.  If the judge previously worked on a case that is currently before the judge or a law-partner worked on the case while the now-judge worked as a lawyer – the judge must recuse.  The only question you ask is whether the judge was at the firm when the party was a client – it does not matter whether the judge worked on the case while she was at the firm.

While the judge as serving in the government (before becoming a judge), the now-judge “participated personally and substantially as a lawyer or public official concerning” the matter or, as a government lawyer/official expressed an opinion about the proceeding.  If a government lawyer or official subsequently becomes a judge, they cannot rule on matters that they were involved with (or publicly stated a position on).

Where the judge was a material witness concerning the matter.  It should come as no surprise that if the judge is going to be a witness in the case – she must recuse herself as the judge.

Where the judge presided over the matter in another court.  For example, the judge may have previously served as a trial court and is elevated to the appellate court.  In that case, the judge must recuse from the case at the appellate level.

[1] ABA Code of Judicial Conduct, Canon 4, Rule 2.11(A)(1).

[2] ABA Code of Judicial Conduct, Canon 4, Rule 2.11(A)(2).

[3] ABA Code of Judicial Conduct, Canon 4, Rule 2.11(A)(3).

[4] ABA Code of Judicial Conduct, Terminology.