Sunday, June 23, 2024

Recusal Of Judge Who Reported Attorney Misconduct

The South Carolina Advisory Committee on Standards of Judicial Conduct opines on the recusal of a judge who reported an attorney to discipline authorities


A family court judge should recuse himself/herself from presiding over cases in which one of the attorneys is a person the judge reported for misconduct.


Rule 3E(1)(a) states that “[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 where the judge has a personal bias or prejudice concerning a party or a party's lawyer….” While the judge may not have a personal bias, the rule is not solely limited to such bias, and certainly, reporting an attorney as required by Canon 3D(2) could be construed (even if it is entirely warranted) as bias if known to the parties and their counsel.

However, in the case of disciplinary proceedings, certain proceedings are confidential. For example, if it is determined that the complaint does not allege conduct that, if true, would violate the Rules of Professional Conduct, it will be dismissed without notice to the attorney. Rule 19(a), RLDE, Rule 413, SCACR. Should the matter progress, the lawyer will receive a notice of investigation, including the initial complaint, and a request for a response. Id. However, the notice of investigation and initial complaint (and the attorney’s response) are not available to the public. Thus, the only person that could question the judge’s impartiality would be the attorney, and the attorney would have to reveal the investigation into his/her conduct, an act that the lawyer is not likely to want to do. Yet, if the matter was public, the judge’s impartiality would or could be called into question. Therefore, it would seem that the best course of action is for the judge to recuse himself/herself from presiding over matters in which the attorney appears.

(Mike Frisch)

Judicial Ethics and the Courts | Permalink


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