judicial recusal

The ABA Wants Lawyers To Report Biased Judges

/ Jack Marshall / 1 Comment

Hmmmm. It can’t be that the notoriously woke ABA is concerned about partisan judges legislating from the bench, can it? Naaah, impossible. What was I thinking?

The American Bar Association Standing Committee on Ethics and Professional Responsibility today released a formal ethics opinion regarding the ethical obligations of lawyers who possess information that could lead to a judge’s disqualification. The opinion declares that a lawyer’s role as an officer of the court requires the disclosure of such information to protect the integrity of the judicial process, provided the disclosure does not violate client confidentiality.

Citing ABA Model Rule of Professional Conduct 8.4(d), otherwise known as the “catch-all rule” that some bar associations (like Virginia) regard as too vague to be meaningful, the ABA concludes that because lawyers are prohibited from engaging in conduct that is “prejudicial to the administration of justice,” when a lawyer knows of information reasonably likely to trigger a judge’s disqualification obligation under the Model Code of Judicial Conduct, the lawyer has a duty to speak up. Lawyers typically would rather not do so in such situations, being afraid of making an enemy in black robes.

Examples of such information not meant to be all-inclusive include prior employment connections (a client of mine couldn’t get a judge to recuse despite his having been a partner in the opposing counsel’s law firm), campaign contributions (the judge knowing that your client, or you, contributed to the judicial candidate who ran against her); a spouse’s law firm’s involvement in the case, and a counsel’s business relationship with a judge’s family member.

Here is the link for ABA Opinion 522.

Incredible: Trump’s Lawyers Try An Even More Unethical Judicial Recusal Argument Than The One Democrats Are Using Against Justice Thomas

/ Jack Marshall / 10 Comments

Where does Donald Trump find his ridiculous lawyers? Did they get degrees by sending in applications from match book covers or comic books like the one above?

Trump attorneys Alina Habba and Peter Ticktin want U.S. District Judge Donald Middlebrooks to recuse himself from Trump’s lawsuit accusing Hillary Clinton of being part of a conspiracy casting his 2016 campaign as colluding with Russia (which, of course, she was). Their motion, filed this week argues that Middlebrooks could be biased because Hillary’s husband selected him for the court in 1997.

Their motion says in part,

“There is no question that Judge’s Middlebrooks’ impartiality would be questioned by a disinterested observer, fully informed of the facts, due to Judge’s relationship with the Defendant, either, individually, or by the very nature of his appointment to the Federal Bench, by the Defendant’s husband. The most important issue is not simply that justice must be done, but also that justice must appear to be done. This could not be more important in a case like the above styled cause, where wrongs in regard to a presidential election are to be redressed.

Continue reading →

The Legal Ethics Forum’s Top Ten Legal Ethics Stories of 2012

/ Jack Marshall / 2 Comments

top-tenOne of my most consulted ethics resources, both for my ethics practice and Ethics Alarms, is the Legal Ethics Forum, created and operated by attorney John Steele with able assistance from some of the best legal ethics experts and scholars in the nation. John has posted the Forum’s Top Ten Legal Ethics Stories of 2012, which you can, and should, read about in detail here. These are John’s headlines: (Ethics Alarms, which is not written for an exclusively legal audience, has covered six of them, #4, #5, #6, #7, #9 (as well as this gem), and #10.) Continue reading →

Obamacare Recusal Wars: Right and Left Are Equally Deluded

/ Jack Marshall / 5 Comments

Note to Drudge: Cheering your boss's victories is not unethical. It's not unusual. It is not even meaningful. It's called "smart."

I hadn’t written about the dual efforts to knock Justice Kagan and Justice Thomas off the Supreme Court panel considering the constitutionality of Obamacare’s individual mandate, because it is so obviously politics masquerading as ethics. I also though they would stop soon, since there is no chance either Justice will recuse at this point, and neither should.

The controversy is still occupying newspapers, blogs and talking heads, however, so I suppose it is worth discussing, especially to make this point: what concerns those seeking recusal is that they know, or think they know, how each Justice will vote on the issue, and they want to rig the process by finding a technicality that will prevent one or the other from participating. Does anyone really think that Kagan’s previous work as Solicitor General under Obama will bias her already liberal leanings? No. Does anyone really believe that Clarence Thomas would vote for an interpretation of the Constitution that opens that door for Congress to demand that we buy whatever it tells us to, were he not trying to please his conservative wife? Tell me another. Both recusal arguments are intellectually dishonest attempts to interfere with full judicial consideration of a politically explosive matter. Continue reading →

Ethics Dunce: Justice Clarence Thomas

/ Jack Marshall / 8 Comments

Will Supreme Court Justice Clarence Thomas be impeached because he failed to disclose his wife’s income, as required by Federal law, for at least five years? No.

Should he be? Probably not, though if it was proven that he intentionally used incorrect information, he could be found guilty of perjury. More likely is a civil penalty. In any event, his wife’s income isn’t a crucial piece of information in Thomas’s case, though his ideological enemies will argue otherwise. Such an omission is virtually never a cause for judicial discipline.

Is it a serious breach of his duties nonetheless? Yes. Continue reading →