The ABA’s Guidance For Judges With Potentially Conflicting Relationships

“Now now, your Honor—that’s the Plaintiff!”

This is as good an example as you’ll find of why professionals can’t and shouldn’t rely solely on the ethics rules-making bodies to solve their ethical dilemmas when they arise.

American Bar Association Formal Opinion 488 purports to tackle the persistent question of when judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned because of relationships with parties. After seven pages and many footnotes,  we are enlightened that  “ a judge must disqualify himself or herself when the judge has a romantic relationship with a lawyer or party in the proceeding, or desires or is pursuing such a relationship.”

Gee, ya think? Do judges really need to be told that? If so, they are way beyond being helped into more ethical judging by the ABA’s guidance. Yet that is virtually the only clear directive in the opinion. Here’s the ABA’s conclusion about the rest:

Judges must decide whether to disqualify themselves in proceedings in which they have relationships with the lawyers or parties short of spousal, domestic partner, or other close familial relationships. This opinion identifies three categories of relationships between judges and lawyers or parties to assist judges in determining what, if any, ethical obligations those relationships create under Rule 2.11: (1) acquaintanceships; (2) friendships; and (3) close personal relationships. In summary, judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. 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 other words, it depends.

Glad you cleared that up, ABA.


5 thoughts on “The ABA’s Guidance For Judges With Potentially Conflicting Relationships

  1. This why lawyers get a bad rep.

    I believe that judges should acknowledge to all parties of ANY relationship greater than just knowing who someone . The mere knowledge that you have any relationship personal or business taints an outcome adverse to the party without the relationship. Give the parties a choice whether the judge should recuse because of a relationship, not the judge.

    • Chris, this is just one of the reasons bar associations get a bad rep. They are feckless. They are essentially wholly-owned subsidiaries of the big firms (through the bar fees of their numerous members and firm donations) and the litigators in those firms. Big firms make lots of money trying cases for their clients in front of judges who are former associates and partners of the firms. The big dogs in big firms put judges on the bench in many if not most states since judges being elected is now frowned upon. A bar association do anything to upset this cozy relationship or the judges they try cases in front of? Hah! Fat chance.

    • No, you’re a jerk because you don’t know who you are talking to. The rule provides no ethical guidance whatsoever. What it is definite about, every judge already knows. On everything else, it merely says, “it’s up to you depending on the facts.” That’s incompetent, ethics malpractice.

      Don’t try commenting here again: your post will be spammed, unless you can convince me with an offsite apology that you have something to contribute other than ignorant snark.

    • So the author is mad because they don’t understand the rule. Alright then.

      Exactly the sort of comment we have come to expect from an uninformed drive by elitist. No attempt to understand your audience, or the purpose of the site. No substance other than unwarranted criticism.

      Great job!

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