COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 70
Disqualification When Former Judge Appears as Counsel.
We have been asked respecting rules and guidelines for former judges,
including judges who resign pursuant to 28 U.S.C. § 371(a), who appear
as counsel before the court in which they once held a judicial office.
The Committee does not advise former judges, for they are bound by the
ABA Code of Professional Responsibility and other relevant rules of ethics
for practitioners. Our guidance may be of some assistance, however, to
judges who are considering the practice of law after resignation under
28 U.S.C. § 371(a). Further, our opinion is directly applicable to
judges assigned to cases in which a former judge of the court appears as
counsel.
We respond to inquiries regarding the duties of sitting judges with
respect to appearances by former judges of the court.
The Code of Conduct for United States Judges and 28 U.S.C. §
455(a) require disqualification when the impartiality of a judge might
reasonably be questioned. The Code also directs recusal where the appearance
of impropriety might exist. These principles govern the duties of the judge
when a former colleague appears as counsel. See Canon 2A and Canon
3B(3).
The Committee recommends that courts announce a policy that for
a fixed period after the retirement or resignation of a colleague, judges
recuse themselves in any case in which the former colleague appears as
counsel. The Committee's experience suggests that a recusal period of two
years would be appropriate. The advantage of such a policy is that it is
evenhanded, can be cited as supplying an objective basis for recusal or
disqualification, and may be formulated without respect to particular individuals.
Even though a fixed period may have expired, a judge may be required
to recuse in a case in which counsel for a party is a former judge with
whom the sitting judge had a particular close association. The standard
applied here is the same as when a former associate or partner in a law
firm, or a close friend, is an attorney in the case. The relevant considerations
are set forth in Advisory Opinion No. 11. We have suggested a two-fold
test. First, does the judge feel capable of disregarding the relationship;
second, can others reasonably be expected to believe the relationship is
disregarded? In applying that test, the judge should consider the closeness
of the relationship, the length of service together, the size of the bench,
and the period that has elapsed since the former judge left the bench.
In a large court, personal or social associations may not have been
close. If the former judge had been a colleague for a short time, it may
be easier to disregard the past relationship, and more likely that litigants
will feel it can play no part in the decision. When the association between
the sitting and former judge has been long, close, and continuing, the
judge's impartiality might reasonably be questioned, and the judge should
consider recusal.
A discrete problem is that of a judge appearing as counsel in a
case that was filed in his or her former court before he or she resigned.
The appearance is improper. In such cases, without regard to the length
of time that has elapsed since the resignation, the judge sitting in the
case has an affirmative obligation, pursuant to Canon 3B(3), to take appropriate
steps to disqualify the former judge as counsel. A majority of the Committee
is of the view that this rule applies whether or not the court has an individual
calendar and whether or not the former judge who is appearing as counsel
had any involvement with the case. The public is unlikely to be aware of
judges' contacts with the case, and litigants have no way of assuring themselves
there was no such contact. There is a substantial risk that the impartiality
of the court as an institution might be questioned. Canon 2A.
If the principles here stated are followed, the Committee finds
no objection to appearances by former judges. That the former colleague
may have superior knowledge of the viewpoints of the sitting judges does
not require disqualification. The same information is available from a
thorough study of the sitting judge's opinions, or from observation of
the judge in the courtroom. Lawyers who frequently litigate before a particular
judge may acquire the same type of information, yet no one would suggest
recusal or disqualification in such cases.
If a judge sits in a case in which a former colleague appears as
counsel, care should be exercised in the courtroom to avoid using or permitting
indications of familiarity. The former colleague should not use or be called
by his or her former title. See Advisory Opinion No. 72. First names
and references to past association, events, or discussions should be avoided.
Absent special circumstances giving rise to reasonable questions
regarding the impartiality of the sitting judge or regarding the propriety
of a former judge's actions, the fact that a former judge is an associate
or partner of the law firm appearing in the case, where the former judge
does not appear or work on the case, does not of itself require recusal
of the judge or disqualification. Advisory Opinion No. 11, pertaining to
the law firm of a close friend, sets forth the considerations here.
Issued 1981
Revised August 27, 1985
Revised January 16, 1998