23.16. Remittal of disqualification

In most situations, even where a judge has an obligation to recuse, the judge may continue to hear the case if the parties agree to remit (waive) the basis of disqualification.  There is one situation where remittal is not available:  where the basis for disqualification is personal bias or prejudice against a party or a party’s lawyer.  In all other situations waiver is possible.  Here are the steps for a valid waiver:

• The judge must first disclose the basis of disqualification to the parties;
• The judge and all court personnel must leave the room so the parties can consult as to whether to waive the disqualification;
• If waiver is agreed to, it must be put into the record.[1]

The prior version of the rule did not include the requirement that all court personnel leave the room while remittal was considered.  There was evidence presented when the ABA was considering amendments that court personnel would listen to the parties’ discussions and then tell the judge which party would not consent to the recusal.  To prevent this eavesdropping, this version requires all court personnel to leave the courtroom.

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