Recusing and Reporting Judges: The Ethical Dimensions
![handle is hein.journals/cjust29 and id is 90 raw text is:
Recusing and Reporting
Judges: The Ethical
Dimensions
BY J. VINCENT APRILE II
fow many criminal law practitioners, whether
prosecutors or defense counsel, whether at
trial, on appeal, or in postconviction pro-
ceedings, have ever moved to disqualify a judge?
How many of those attorneys have ever reported
serious judicial misconduct to the appropriate
authority? Often in response to these questions,
criminal law practitioners recite a litany of justi-
fications for declining to recuse or report a judge.
For example, the fears often voiced by litigators who
decline to file disqualification motions include: (1) a
motion to disqualify the judge will possibly incur the
judge's wrath in this case, if the judge remains on the
case, or, if disqualified, in other cases the attorney has
before the challenged judge; (2) the next judge assigned
after a successful disqualification motion will be worse
than the recused judge; (3) other judges will view the
lawyer filing the recusal motion as a troublemaker or
a judge basher; (4) the litigator's attempt, whether suc-
cessful or unsuccessful, to disqualify a judge will create
the impression that the litigator is unethical; and (5) the
challenged judge may view the disqualification motion
as an attack on the judge's own judicial ethics. These
and other anxieties that cause litigators to shun judicial
disqualification motions must be evaluated in light of
the lawyer's ethical obligations.
If a lawyer is aware that the judge is disqualified
to preside in the lawyer's case, is the lawyer ethi-
cally required to bring the recusal issue to the judge's
attention? A litigator may not decide as a matter of
personal preference or litigation strategy to decline
to seek the disqualification of a judge whose partici-
pation is barred by statutory law, a code of judicial
conduct, and/or federal or state constitutional
grounds. Ethical obligations require the litigator to
file the disqualification motion under such circum-
stances. It is professional misconduct for a lawyer
to ... knowingly assist a judge or judicial officer
in conduct that is a violation of applicable rules
J. VINCENT APRILE II retired after 30 years as a public
defender with the Kentucky Department of Public Advocacy
and joined Lynch, Cox, Gilman & Goodman, P S. C., in
Louisville, Kentucky, where he specializes in criminal law, both
trial and appeal, employment law, and litigation. He is past-
chair of the editorial board of Criminal Justice magazine and
a regular columnist. He is the recipient of the 2012 Louisville
(Kentucky) Bar Association's Distinguished Service Award.
36
of judicial conduct or other law. (MODEL RULES OF
PROF'L CONDUCT R. 8.4(f) (2013).)
Once the litigator is aware that the judge presid-
ing over the case or the appeal is disqualified, the
litigator may not ethically rely on the judge to sua
sponte recuse himself or herself from the matter. By
leaving the disqualification issue in the hands of the
judge, the litigator is knowingly assisting the judge
in violating statutory law, the judicial conduct code,
or federal or state constitutional due process provi-
sions, regardless of whether the judge is unaware of
his or her disqualification in the case. The key fact is
the litigator knows the judge is disqualified. 'Know-
ingly' ... denotes actual knowledge of the fact in
question. (MODEL RULES OF PROF'L CONDUCT R. 1.0(f).)
Judicial ethics require a judge to sua sponte recuse
herself or himself. A judge shall disqualify himself or
herself in any proceeding in which the judge's impar-
tiality might reasonably be questioned. (MODEL CODE
OF JUDICIAL CONDUCT R. 2.11(A) (2011).) Additionally,
where, by law or code of judicial conduct, a judge
must disqualify himself or herself in any proceeding
in which his or her impartiality might reasonably be
questioned, the judge's actual knowledge of the dis-
qualification grounds may not be controlling. '[R]
ecusal is required even when a judge lacks actual
knowledge of the facts indicating his interest or bias
in the case if a reasonable person, knowing all the
circumstances, would expect that the judge would
have actual knowledge.' (Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 860-861 (1988)
(quoting Health Servs. Acquisition Corp. v. Lilje-
berg, 796 F.2d 796, 802 (5th Cir. 1986)) (interpreting
28 U.S.C. § 455(a)).) Other jurisdictions have adopted
this test. (See, e.g., Petzold v. Kessler Homes, Inc.,
303 S.W.3d 467, 473 (Ky. 2010).) As a result, a judge
who is unaware of the basis for disqualification is in
many situations disqualified nonetheless.
The ethical requirement to raise the judicial dis-
qualification issue in this context is premised on the
responsibility of the litigators in a case to police the
fundamental requirement that a fair and impartial
judge is essential to justice. But what if the litigator
decides that, even though the judge is disqualified as
a matter of law or judicial ethics, this judge should
nevertheless remain on the case? In that circum-
stance, is the litigator ethically permitted to waive
the disqualification issue by electing not to raise the
issue? A litigator may not ethically decide, without
the consent of the client, to waive the disqualifi-
cation and, even with the client's consent, cannot
waive the disqualification by simply doing nothing.
Under the Model Code of Judicial Conduct and its
counterparts, such as the Code of Conduct for United
States Judges, a waiver of a judicial disqualification
must be performed via a special procedure, designated
in some jurisdiction as remittal of disqualification.
CRIMINAL JUSTICE U Summer 2014](ViewImageLocal?handle=hein.journals/cjust29&div=29&collection=&method=preview&ext=.png&size=3)
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Recusing and Reporting Judges: The Ethical Dimensions
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