COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 66
Disqualification Following Complaint Against Attorney.
Advice is requested on whether a bankruptcy judge who, in compliance
with state law, has filed in confidence with a disciplinary body a complaint
of unprofessional conduct against an attorney, must disqualify in bankruptcy
proceedings in which the attorney complained of appears as counsel.
In addition to the state law here involved, Canon 3B(3) requires
that a judge "should initiate appropriate action when the judge becomes
aware of reliable evidence indicating the likelihood of unprofessional
conduct by a judge or lawyer." Canon 3C(1)(a) provides:
C. Disqualification
(1) A judge shall disqualify himself or herself in a proceeding
in which the judge's impartiality might reasonably be questioned, including
but not limited to instances in which:
(a) the judge has a personal bias or prejudice concerning
a party, or personal knowledge of disputed evidentiary facts concerning
the proceeding. . . .
28 U.S.C. § 455(b)(1) also provides in relevant part "[a judge] shall
. . . disqualify himself in the following circumstances: (1) Where he has
a personal bias or prejudice concerning a party."
The Committee concludes that when a judge files a complaint of unprofessional
conduct against a lawyer, either in compliance with state law or Canon
3B(3), and the lawyer is before the judge as counsel in the case giving
rise to the unprofessional conduct, or in a later case, it is not required
that the judge recuse on grounds of bias or prejudice simply because the
complaint was filed.
Ordinarily, opinions formed by a judge on the basis of facts introduced
or events occurring in the course of current or prior proceedings do not
constitute a basis to show bias or partiality. Strongly stated judicial
views rooted in the record, a stern and short-tempered judge's efforts
at courtroom administration, expressions of impatience, dissatisfaction,
annoyance and even anger directed to an attorney or a party should not
be confused with judicial bias. Thus, a showing of bias warranting recusal
generally must be based on extra-judicial conduct and not conduct which
arises in a judicial context unless the conduct displays a deep-seated
favoritism or antagonism that would make fair judgment impossible. See
Liteky v. United States, 510 U.S. 540, 555 (1994).
August 25, 1980
Revised July 31, 1998