When does a judge have to recuse or disclose because the judge is friends with, or close to, a lawyer or party in the case?

Plain-English summary

Rule 2.11 of the Model Code of Judicial Conduct lists situations, such as certain family and personal relationships, that require a judge to disqualify, but it is silent on social relationships outside those listed. The opinion fills that gap by sorting judge-lawyer and judge-party relationships into three categories: acquaintances, friendships, and close personal relationships.

Acquaintances are people whose contact with the judge is coincidental or superficial, such as belonging to the same congregation, club, or bar association, or patronizing the same business. The opinion concludes that, judged by a reasonable person fully informed of the facts, an acquaintance "standing alone, is not a reasonable basis for questioning the judge's impartiality," so the judge need not disqualify and has no duty to disclose the acquaintance, though the judge may disclose it if the judge chooses.

Friendship "implies a degree of affinity greater than being acquainted" and connotes mutual affection, but the opinion stresses that "not all friendships require judges' disqualification." Quoting the Seventh Circuit, it observes that friendships between judges and lawyers are common and even desirable, and that a judge "need not disqualify himself just because a friend, even a close friend, appears as a lawyer." Whether a friendship requires recusal "is essentially a question of degree" turning on the facts. The opinion directs the judge to disclose a friendship the parties might reasonably consider relevant to a disqualification motion, and, if a party then objects, the judge retains discretion to continue or to step aside, stating the reasons on the record.

Close personal relationships go beyond ordinary friendship, for example a romantic involvement (current, desired, or pursued), an amicable or co-parenting ex-spouse, or a godparent relationship. The opinion concludes that a judge "must disqualify himself or herself when the judge has a romantic relationship with a lawyer or party in the proceeding, or desires or is pursuing such a relationship," and should disclose other intimate or close relationships even if the judge believes the judge can be impartial. Under Rule 2.11(C), disqualification based on a friendship or close relationship may be waived if the parties and lawyers agree on the record, except where the judge has an actual personal bias or prejudice.

In practice

Under the Model Code as it stood at the time of the opinion, the analysis sorts a judge's relationship with a lawyer or party into one of three tiers. The opinion holds that an acquaintance requires neither disclosure nor disqualification; a friendship requires the judge to assess closeness, disclose where the parties might reasonably find it relevant, and decide recusal as a matter of degree and discretion; and a romantic or other intimate relationship requires disqualification, subject to waiver under Rule 2.11(C) except where the judge harbors actual bias. The opinion is explicit that disqualification is the exception rather than the rule and that judges should avoid recusing too readily, which could invite judge-shopping.

Common questions

Q: Does a judge have to recuse just because a lawyer in the case is a friend?

A: Not automatically. The opinion says "not all friendships require judges' disqualification" and treats it as a question of degree; the judge should disclose a friendship the parties might reasonably consider relevant, then exercise discretion.

Q: What about a lawyer the judge merely knows from bar events or the same gym?

A: That is an acquaintance. The opinion concludes an acquaintance, standing alone, is not a reasonable basis to question impartiality, so the judge need not disqualify or disclose it.

Q: When must a judge step aside for sure?

A: The opinion states a judge must disqualify when the judge has, desires, or is pursuing a romantic relationship with a lawyer or party in the proceeding.

Q: Can the parties waive the judge's disqualification?

A: Yes, for friendships and close personal relationships, under Rule 2.11(C), if the parties and lawyers agree on the record. The opinion notes waiver is unavailable where the judge has an actual personal bias or prejudice.

Background and rules framework

The opinion interprets the ABA Model Code of Judicial Conduct (as amended through February 2019), principally Rule 2.11 (disqualification where impartiality might reasonably be questioned, and waiver under 2.11(C)), Rule 1.2 (avoiding impropriety and its appearance), and Rule 2.4(B) (not allowing social relationships to influence judicial conduct). The opinion applies an objective reasonable-person standard and emphasizes that controlling authority is each jurisdiction's own rules and law.

Citations and references

Rules of Professional Conduct:

• ABA Model Code of Judicial Conduct Rule 2.11 (disqualification; waiver under 2.11(C))
• Model Code Rule 1.2 (appearance of impropriety); Rule 2.4(B) (social influence)

Cases:

• United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), friendships between judges and lawyers
• In re Schwartz, 255 P.3d 299 (N.M. 2011), recusal for close or intimate relationships

Other opinions cited:

• N.Y. Advisory Comm. on Judicial Ethics Op. 11-125 (2011): categories of judge relationships
• U.S. Judicial Conf., Comm. on Codes of Conduct Advisory Op. No. 11 (2009): friends appearing as counsel

See also

• ABA Formal Op. 462: Judge's Use of Electronic Social Networking Media
• NY State Bar Op. 574: Judge Recusal Where Lawyer Previously Represented Judge
• NY State Bar Op. 541: Judge's Appearance of Integrity and Impartiality

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-488.pdf