Lawyers Obliged to Disclose Judicial Recusal Grounds, ABA Says

Lawyers who possess information that they know is “reasonably likely” to cause a judge to be disqualified from a case must disclose what they know, the American Bar Association says in a new ethics opinion.

Yet when the lawyer possesses the information only because it’s related to a client representation, their disclosure obligation is subject to the lawyer’s duty of confidentiality under the Model Rules of Professional Conduct, ABA says in its Wednesday opinion.

In recent years, ABA says it’s seen “numerous reported instances in which judges failed to recuse when the circumstances warranted it.” As officers of the court, lawyers should “not only disclose information reasonably likely to require recusal that a judge may not be aware of, but also should not remain silent and allow a judge to knowingly refuse to acknowledge circumstances requiring recusal.”

Judges are expected to raise recusal questions themselves, “as they best know the relevant information,” the ABA says. But if the judge fails to speak up, a lawyer before them must address the matter if they can establish that the judge “must consider recusal because of the possibility that the judge’s impartiality might reasonably be questioned.”

The lawyers’ responsibility stems in part from ABA’s Model Rule 8.4(d), which states that it’s “professional misconduct” for a lawyer to “engage in conduct that is prejudicial to the administration of justice.”

“Unifying” themes of previous ABA opinions have been that lawyers “must be forthcoming with procedural information that the tribunal needs to ensure that the proceedings are fair,” the ABA says.

ABA provided several illustrations of ways lawyers might possess “actual knowledge of facts” that may “reasonably require” a judge to consider recusing themselves.

In one, a prosecutor is assigned to represent the state in post-conviction proceedings, and the assigned judge previously served as a supervisor in the prosecutor’s office. The prosecutor determines that the judge in fact supervised the trial prosecutor in the case, but the judge may not recall it and the the defendant’s lawyer is evidently unaware of the judge’s previous role.

In another, a lawyer representing a party in a civil case learns from the client that the client was a major financial contributor to the judge’s recent election campaign, but there’s no public record of the contribution, and the judge may have never known about it.

Yet there are limits to the lawyer’s obligation to disclose, ABA says. Key among them is the duty of confidentiality, as elaborated on in Model Rule 1.6.

Although clients should “generally be encouraged to give informed consent to their lawyer’s reporting” judicial misconduct pursuant to Model Rule 8.3(c), “a lawyer may not disclose information relating to the representation without the client’s informed consent” unless there’s an “applicable exception” to the confidentiality obligation, the opinion says.

“We conclude that the lawyer’s duty to disclose a judge’s possible recusal obligation is subject to the same limitation,” ABA says.

Without the client’s informed consent, or an applicable exception to the confidentiality duty, the opinion says the duty to disclose information likely to require recusal is subject to Rule 1.6(a) “when that information is ‘relating to the representation of a client.’”

Lawyers should disclose types of information that are “reasonably likely to require recusal” to authorities capable of addressing the issue, ABA says, including going directly to the judge, with notice to opposing counsel. In other cases, disclosure to the chief judge “or other designated administrative authority” may also be warranted.