COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 100

Identifying Bankruptcy Parties for Purposes of Recusal.

Canon 3C(1)(c) requires a judge to recuse when the judge knows that the judge, the judge's spouse, or a minor child residing in the judge's household "has a financial interest . . . in a party to the proceeding." Similarly, Canon 3C(1)(d) requires a judge to recuse if the judge, the judge's spouse, "or a person related to either within the third degree of relationship, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director, or trustee of a party." In most matters filed in the federal courts, it is easy to identify who is "a party to the proceeding" by reviewing the caption of the charging pleadings and proofs of service. However, bankruptcy cases are quite different because such cases regularly involve creditors who may have some interest in the proceedings, but no intention of participating in a capacity akin to a party.

Identifying who is "a party to the proceeding" for purposes of recusal in bankruptcy cases is important not only to the bankruptcy courts, but also to the district courts sitting as bankruptcy courts after withdrawal of the reference, to the district courts sitting as appellate courts, to the bankruptcy appellate panels, and to the circuit courts of appeal. The Committee consistently has taken the position that simply being a creditor or an interest holder of a bankruptcy estate is not a sufficient interest to make that creditor "a party to the proceeding." In that same vein, the acts of filing a proof of claim, or submitting a ballot on a proposed plan of reorganization are not in themselves sufficient to raise the creditor or interest holder to the status of a party. It takes something more.

The Committee has advised that if a creditor accepts appointment to a committee of creditors, that change in status is sufficient to make each such creditor or interest holder "a party" because of the statutory responsibilities assumed by acceptance of such an appointment. In addition, the following participants in bankruptcy proceedings should be considered parties for these purposes: the debtor, a trustee, parties to an adversary proceeding, and participants in a contested matter. These entities occupy a central role in the proceedings or are actively involved in matters requiring judicial adjudication. As a consequence, we advise that they are sufficiently akin to parties that they should be treated as such for purposes of judicial disqualification.

Part of the ethical challenge in bankruptcy cases lies in the fact that the identity of "a party to the proceeding" may change with any motion, objection, or adversary proceeding. When the issue is joined in this fashion, and a participant becomes a party for these purposes, the question of recusal must be considered. Judges sitting in bankruptcy matters should be vigilant to the possibility that a creditor or interest holder's status may at some time change to "a party." The Committee has advised, however, that in the ordinary bankruptcy case a judge has no obligation to review the schedules of creditors and interest holders to look for possibly disqualifying circumstances.

January 12, 2001