COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 99
Judge's Obligation to Recuse Where One Party's Attorney Is Involved in a Separate Class Action
in Which the Judge or a Relative Is a Member of the Class.
In light of the number of class actions with very large classes, it sometimes happens that
the attorneys in a case pending before a judge are involved in a separate class action in which the
judge or one of the judge's relatives is a class member. This Advisory Opinion addresses the
considerations that bear on whether the judge should recuse in such a case.
Under the authority of Canon 3C(1) of the Code of Conduct for United States Judges, the
Committee has advised judges that they should recuse, subject to remittal, in cases in which one
of the parties is represented by a lawyer who is a member of a firm that currently represents the
judge in an unrelated matter. See Compendium § 3.6-2(a) (1999). The same advice applies if, to
the judge's knowledge, the lawyer's firm represents, in an unrelated matter, the judge's spouse or
minor child residing in the judge's household.
The question addressed here is whether, and to what extent, that general advice should
apply to cases in which the representation of the judge or the judge's relative in an unrelated
matter consists of representation in a Rule 23(b)(3) class action.
The Committee is of the view that there is no absolute requirement of recusal in cases in
which the judge or the judge's relatives are represented in the unrelated matter solely in their
capacity as class members. In some instances, the relationship between the judge (or the judge's
relatives) and the attorney for the class may be quite similar to the relationship between attorney
and client in a conventional setting, and in such cases recusal would be required. However,
where the class action is a large one, in which the judge (or the judge's relatives) are not lead
plaintiffs or named plaintiffs, have had no role in selecting the attorney for the class, have not
had, and do not expect to have, personal contact with the attorney, and have no reasonable
expectation of a substantial personal recovery, the case for recusal is not nearly as strong. In that
setting, the Committee is of the view that the mere fact that the judge, or a relative of the judge,
is represented as a class member by the same attorney or firm that is appearing before the judge
does not give rise to a reasonable question as to the judge's impartiality and therefore does not
require recusal under Canon 3C(1).
A different case would be presented if the class of which the judge is a member is a small
one, if the judge is a named plaintiff, or is playing an active role in the litigation, or if the judge
has a reasonable expectation of a substantial recovery. In that setting, the judge would be
required to recuse, subject to remittal, if an attorney appearing before the judge in the case in
question is a member of the firm that represents the class in the class action.
July 12, 2000