ABA Gives Ethics Advice on Judges’ Friendships, Romances

The American Bar Association has clarified in a new opinion when a judge’s personal relationships with others involved in a case should disqualify them from presiding over a case.

Some types of relationships have already been addressed by Rule 2.11 of the Model Code of Judicial Conduct, including spousal relationships, but the new opinion from the ABA Standing Committee on Ethics and Professional Responsibility addresses other types of connections.

The existing judicial rules mandate disqualification when “a judge’s relationship with a lawyer or party would cause the judge’s impartiality to reasonably be questioned,” the Sept. 5 opinion said. Such a relationship includes a spouse or domestic partner under the rules.

But the rules are “silent” about other instances when a judge’s impartiality may be questioned, such as when they have an acquaintanceship, friendship, or close personal relationship with lawyers or parties to a proceeding, the committee noted. In these cases, judges have to decide whether to disqualify themselves or disclose the relationship, it said.

A judge is presumed to be impartial so disqualification is the exception, not the rule, the committee wrote.

Relationship Issues

Judges don’t have to disqualify themselves when a party to a proceeding is an acquaintance, and they don’t have to tell anyone else about the relationship, the committee said.

The opinion defined an acquaintance as someone a judge interacts with superficially outside of court, like a member of the same place of worship or professional or civic organization. Acquaintances don’t seek each other out but are friendly “when their lives intersect.” A judge’s acquaintance with a lawyer or party isn’t a reasonable basis for questioning the judge’s impartiality, the committee said.

But in proceedings where the judge has a relationship with lawyers or parties that don’t fall into this category, judges have to decide whether to disqualify themselves, and the decision should be based on the nature and circumstances of the friendship or close personal relationship.

“Judicial ethics authorities agree that judges don’t have to disqualify themselves in many cases in which a party or lawyer is a friend,” the opinion said.

For example, a judge and lawyer who once practiced law together may periodically meet for a meal when their busy schedules permit, but there may be other situations where the closeness of the relationship might cause impartiality to be reasonably questioned, the committee pointed out.

Apart from disqualification, a judge should disclose to the other lawyers and parties in the proceeding a friendship with a lawyer or party “that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification,” the opinion said.

“If, after disclosure, a party objects to the judge’s participation in the proceeding, the judge has the discretion to either continue to preside or to disqualify himself or herself,” it said. “The judge should put the reasons for their decision on the record.”

The situation is slightly different for close personal relationships that are different from “common concepts of friendship” but aren’t addressed by the judicial conduct rules, the committee said.

For instance, a judge must disqualify himself or herself if the judge has a romantic relationship with a lawyer or party in a proceeding or if they desire or are pursuing such a relationship, the committee said.

For other close relationships, like a judge who’s a godparent to a lawyer’s or party’s child, the judge has to reveal the relationship even if they believe they can be impartial. As with friendships, if anyone objects, the judge has the discretion to remain on the case or disqualify themselves, but must put the reasons for the decision on the record.

However, for these close relationships of a non-romantic nature, a judge who who doesn’t want to publicize the relationship may instead disqualify themselves from the proceeding.

In both instances where a judge has to consider disqualification—friendships and close personal relationships—the judge can ask the parties and their lawyers to consider waiving disqualification after disclosing on the record the basis for the disqualification, the committee said.

In a footnote, the committee clarified its opinion doesn’t address another common mode of connection, social media.

“Interaction on social media does not itself indicate the type of relationships participants have with one another either generally or for purposes of this opinion.”

The opinion is ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 488, 9/5/19.