Judicial ethics and responsibilities - Disqualification

Learning Outcomes

After reading this article, you will be able to identify when a judge must disqualify themselves from a case, explain the grounds for mandatory and permissive disqualification, distinguish between waivable and non-waivable conflicts, and apply the rules regarding disclosure and recusal to MPRE-style scenarios. You will also understand the consequences of failing to disqualify and the process for parties to waive disqualification.

MPRE Syllabus

For the MPRE, you are required to understand the ethical obligations of judges regarding impartiality and recusal. This article covers:

• Recognizing when a judge’s impartiality may reasonably be questioned.
• Identifying mandatory and permissive grounds for judicial disqualification.
• Understanding the rule of necessity and exceptions to recusal.
• Applying the process for disclosure and waiver of disqualification.
• Knowing the consequences of failing to disqualify and the judge’s duty to disclose potential conflicts.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A judge’s spouse owns stock in a company that is a party to a case before the judge. What is the judge’s duty?
   1. Disclose the interest and continue if no party objects.
   2. Disqualify themselves from the case.
   3. Decide based on the value of the stock.
   4. Only recuse if the spouse is called as a witness.
2. Which of the following is a waivable ground for judicial disqualification?
   1. Personal bias against a party.
   2. Prior service as a lawyer in the matter.
   3. Economic interest in a party.
   4. None; all grounds are non-waivable.
3. If a judge learns that their impartiality may reasonably be questioned, but no party moves for recusal, what must the judge do?
   1. Continue presiding unless a party objects.
   2. Disclose the potential conflict and seek waiver.
   3. Disqualify themselves regardless of party action.
   4. Decide based on their own belief of impartiality.
4. What is the “rule of necessity” in judicial disqualification?
   1. Judges must always recuse if there is any conflict.
   2. A judge may hear a case if no other judge is available.
   3. Parties can always waive disqualification.
   4. Disqualification is required for all financial interests.

Introduction

Judicial disqualification, also known as recusal, ensures the fairness and integrity of the legal process by requiring judges to step aside when their impartiality might reasonably be questioned. The Model Code of Judicial Conduct (CJC) sets out when a judge must or may disqualify themselves, the process for disclosure and waiver, and the consequences of failing to do so. Understanding these rules is essential for the MPRE.

Key Term: Disqualification (Recusal)
The process by which a judge removes themselves from a case due to actual or perceived conflicts of interest, bias, or other circumstances that may affect impartiality.

Grounds for Judicial Disqualification

A judge must disqualify themselves in any proceeding where their impartiality might reasonably be questioned. The standard is objective: would a reasonable person doubt the judge’s impartiality?

Mandatory Disqualification

Disqualification is required in the following situations:

• Personal bias or prejudice concerning a party or a party’s lawyer.
• Personal knowledge of disputed evidentiary facts.
• The judge, their spouse, or a close family member is a party, lawyer, material witness, or has more than a de minimis financial interest in the outcome.
• The judge has previously served as a lawyer in the matter, or was associated with a lawyer who participated substantially in the matter.
• The judge has made public statements committing to a particular result.
• A party, lawyer, or law firm has made significant contributions to the judge’s election campaign, exceeding jurisdictional limits.

Key Term: Impartiality
The absence of bias or prejudice for or against any party, lawyer, or issue in a proceeding.

Key Term: Economic Interest
Any legal or equitable ownership, however small, in a party or subject matter of the proceeding, except for interests that are de minimis or held through mutual funds or similar vehicles.

The Rule of Necessity

A judge who would otherwise be disqualified may hear a case if no other judge is available and immediate action is required (e.g., emergency hearings). The judge must disclose the basis for possible disqualification and transfer the matter as soon as practicable.

Key Term: Rule of Necessity
The principle allowing a disqualified judge to hear a case if no other judge is available and immediate judicial action is required.

Key Term: Waiver of Disqualification
The process by which all parties, after full disclosure, agree that a judge who would otherwise be disqualified may continue to preside over the case.

Disclosure and Waiver

A judge must disclose on the record any information that parties or lawyers might reasonably consider relevant to disqualification, even if the judge believes recusal is not required. Most grounds for disqualification (except personal bias or personal knowledge of disputed facts) may be waived by the parties after full disclosure. The waiver must be on the record and outside the presence of the judge.

Non-Waivable Grounds

Some grounds for disqualification cannot be waived, even with party consent. These include:

• Personal bias or prejudice toward a party or lawyer.
• Personal knowledge of disputed evidentiary facts.

Duty to Disclose

Judges must proactively disclose any facts that could reasonably be seen as grounds for disqualification. Failure to disclose may result in disciplinary action, reversal of judgment, or both.

Consequences of Failing to Disqualify

If a judge fails to disqualify themselves when required, consequences may include:

• Reversal of judgment on appeal.
• Disciplinary action against the judge.
• Loss of public confidence in the judiciary.

Worked Example 1.1

A judge is assigned a case involving a corporation in which the judge’s sibling owns 1% of the stock. The judge believes this interest is insignificant and does not disclose it. Is disqualification required?

Answer:
Yes. Any economic interest, even a small one, held by the judge or a close family member in a party requires disqualification. The judge must either recuse themselves or, if permitted, disclose the interest and seek waiver from the parties. Failure to do so is a violation.

Worked Example 1.2

A judge previously served as a lawyer for a government agency involved in a matter now before the court. The judge had no personal involvement in the specific case but worked in the same department. Is recusal necessary?

Answer:
No, unless the judge participated personally and substantially in the matter as a lawyer. Mere employment in the same agency is not enough. However, the judge should disclose the prior employment for transparency.

Worked Example 1.3

A judge’s impartiality is questioned because a party’s lawyer recently contributed a large sum to the judge’s campaign, exceeding the jurisdiction’s threshold. The judge discloses this and asks the parties if they wish to waive disqualification. The parties agree in writing. Can the judge continue?

Answer:
Yes. Most grounds for disqualification, including campaign contributions, can be waived after full disclosure, unless the ground is personal bias or personal knowledge of disputed facts.

Exam Warning

On the MPRE, do not assume that a judge’s own belief in their impartiality overrides the objective standard. If a reasonable person would question impartiality, recusal is required, even if the judge feels unbiased.

Revision Tip

Memorize the key mandatory grounds for disqualification and know which can and cannot be waived. Practice applying the objective “reasonable person” standard to fact patterns.

Key Point Checklist

This article has covered the following key knowledge points:

• Disqualification is required when a judge’s impartiality may reasonably be questioned.
• Mandatory grounds include bias, personal knowledge, economic interest, family involvement, prior participation, and campaign contributions.
• The rule of necessity allows a judge to act if no other judge is available.
• Judges must disclose potential conflicts and seek waiver where allowed.
• Some grounds (bias, personal knowledge) are never waivable.
• Failure to disqualify can lead to reversal or discipline.
• Waiver of disqualification requires full disclosure and agreement on the record.

Key Terms and Concepts

• Disqualification (Recusal)
• Impartiality
• Economic Interest
• Rule of Necessity
• Waiver of Disqualification