If a lawyer knows of a fact that should disqualify the judge but the judge has not raised it, must the lawyer tell the court?

Plain-English summary

The opinion addresses what a lawyer must do when the lawyer knows a fact that is reasonably likely to require the presiding judge's recusal under Model Code of Judicial Conduct Rule 2.11 (impartiality reasonably questioned), but the judge has not raised it. The committee frames this through the lawyer's role as an officer of the court. It is careful to say it addresses only the lawyer's duties under the Model Rules, not the substantive law of recusal or the judge's own obligations.

The committee starts from the general rule that, outside ex parte proceedings, lawyers need not volunteer all material facts to the court. But judicial decisions recognize a narrower "overarching duty of candor" requiring disclosure of procedural or jurisdictional information essential to a fair proceeding, even where no rule expressly compels it, and a failure can be conduct "prejudicial to the administration of justice" under Rule 8.4(d). The opinion collects supporting authority, including Tiverton Board of License Commissioners v. Pastore (duty to disclose mootness) and the committee's own opinions on disclosing a party's death. It contrasts information a lawyer need not surface, such as that the statute of limitations has run (an affirmative defense, not a jurisdictional or fairness defect), citing Formal Opinion 94-387.

The committee concludes that information reasonably likely to require recusal falls on the must-disclose side, because the judge's unwitting failure to recuse can deny a fair trial and produce reversible procedural error. It analogizes to Rule 3.3(a)(2) (disclosing directly adverse controlling authority): the concern is "the structural integrity of the proceedings." Four illustrations show qualifying knowledge: a judge who earlier supervised the trial prosecutor, a client's large campaign contribution to the judge, opposing co-counsel's engagement of the judge's spouse's firm, and the lawyer's business tie to the judge's adult child.

Critically, the opinion subjects this duty to confidentiality. Drawing on Rule 8.3(c) (the judicial-misconduct reporting duty yields to Rule 1.6) and on Formal Opinion 519, it holds that where the lawyer knows the recusal information only as information relating to the representation, the lawyer needs the client's informed consent or an exception. Two exceptions may apply: Rule 1.6(b)(6) (disclosure to comply with other law, where the jurisdiction's candor decisions extend to recusal information), and Rule 3.3(b) (remedial measures where a client's plan to exploit rather than disclose a relationship with the judge amounts to fraud on the proceeding). The opinion also explains where to disclose (usually to the judge with notice to opposing counsel, sometimes the chief judge) and notes that Rule 8.3(b)'s separate duty to report a judge will rarely be triggered by a recusal failure, requiring knowledge that the lapse raises a "substantial question" about the judge's fitness.

In practice

Under this opinion, a lawyer who learns a fact reasonably likely to require the judge's recusal, and the judge has not raised it, should disclose it to the court, ordinarily to the judge with notice to opposing counsel, treating the disclosure as protecting the integrity of the proceeding rather than as a tactical choice. The opinion frames this as both surfacing facts the judge may not know (its stock-in-a-parent-company example) and not staying silent while a judge knowingly ignores a clear recusal ground.

The duty bends to confidentiality. Where the lawyer knows the information only as information relating to the representation, the opinion directs the lawyer to seek the client's informed consent, and absent consent to disclose only if Rule 1.6(b)(6) (other law) or Rule 3.3(b) (remedial measures against the client's fraud on the tribunal) applies. The opinion also flags that the separate judicial-reporting duty under Rule 8.3(b) is narrow: it requires actual knowledge that the judge had and disregarded an obvious recusal obligation in a way that raises a substantial question about the judge's fitness, not merely a close or uncertain recusal question.

Common questions

Q: The judge has an apparent conflict but has said nothing. Do I have to raise it?

A: Per the opinion, if you know information reasonably likely to require the judge's recusal, Rule 8.4(d) requires you to disclose it to the tribunal as an officer of the court, subject to your confidentiality duty when the information relates to the representation.

Q: What if I only know the conflict because of confidential client information?

A: The opinion holds the disclosure duty is then subject to Rule 1.6. You need the client's informed consent or an applicable exception, such as Rule 1.6(b)(6) (other law) or Rule 3.3(b) (remedial measures against a client's fraud on the proceeding).

Q: Does this mean I must investigate the judge's finances and relationships?

A: No. The opinion says parties have no reason to investigate the judge for recusal grounds, which is principally the judge's responsibility; the duty arises when the lawyer already knows information reasonably likely to require recusal and the judge has not addressed it.

Q: Is failing to disclose the same as having to report the judge under Rule 8.3?

A: The opinion treats them as distinct. Rule 8.3(b) reporting will rarely apply to a recusal failure; it requires the lawyer to know the judge had an obvious recusal duty, disregarded it, and that this raises a substantial question about the judge's fitness for office.

Q: Where do I make the disclosure?

A: Per the opinion, usually directly to the judge with notice to opposing counsel to avoid an improper ex parte communication, though disclosure to the chief judge or another designated authority may be warranted depending on the nature of the potential conflict.

Background and rules framework

The opinion interprets Model Rule 8.4(d) (conduct prejudicial to the administration of justice) as the source of a lawyer's duty to disclose recusal-relevant information, informed by the officer-of-the-court duty of candor reflected in Rule 3.3(a)(2). It subjects that duty to Model Rule 1.6 (confidentiality), identifying Rule 1.6(b)(6) (compliance with other law) and Rule 3.3(b) (remedial measures for fraud on the tribunal) as potential exceptions, and cites Rule 1.2(d) and Rule 1.16(a)(4) on not assisting client fraud. It distinguishes the separate reporting duty in Rule 8.3(b). The recusal standard itself comes from Model Code of Judicial Conduct Rule 2.11.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 8.4(d) (conduct prejudicial to the administration of justice)
• ABA Model Rule 1.6 (confidentiality), including exception 1.6(b)(6) (other law)
• ABA Model Rule 3.3 (candor toward the tribunal), including 3.3(a)(2) and 3.3(b)
• ABA Model Rule 8.3(b) (reporting judicial misconduct); Model Code of Judicial Conduct Rule 2.11 (disqualification)

Cases:

• Tiverton Bd. of License Comm'rs v. Pastore, 469 U.S. 238 (1985), duty to disclose facts that moot a case
• Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F. Supp. 507 (E.D. Mich. 1983), duty to disclose a party's death
• In re Bernard v. Coyne, 31 F.3d 842 (9th Cir. 1994), officer-of-the-court duty to raise a judge's apparent partiality

Other opinions cited:

• ABA Formal Op. 488 (2019): judges' personal relationships and disqualification
• ABA Formal Op. 519 (2025): disclosure of confidential information to the court
• ABA Formal Op. 94-387 (1994): no duty to disclose that the limitations period has run
• Mich. Ethics Ops. JI-79 (1994) and J-6 (1996): lawyer's duty to disclose facts requiring a judge's recusal

See also

• ABA Formal Op. 488: Judges' Personal Relationships and Disqualification
• ABA Formal Op. 519: Confidentiality in a Motion to Withdraw
• Michigan Ethics Op. JI-13: Disqualification When a Lawyer Rents the Judge's Spouse's Property

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-522.pdf