Must a former deputy district attorney recuse from cases prosecuted by former colleagues in counties where the judge had no supervisory role?

Plain-English summary

The requester had been a deputy district attorney in one county, supervising its prosecutions, and had personally handled some cases in two other counties. The judge had already disqualified themself from cases in the supervised county and from cases personally handled. The question concerned other prosecutions by former colleagues in counties where the judge had no supervisory role. [Source: Opinion 14-07, p. 1]

The committee applied Rule 21-211(A)(5)(b) to the judge's former government employment. It said personal and substantial participation includes acting as prosecutor or supervisor in the case. It read that provision separately from subsection (a), which addresses other lawyer associations. [Source: Opinion 14-07, p. 2]

On those facts, the committee concluded that the judge's former association with district attorney colleagues did not itself require disqualification from cases the judge neither handled nor supervised. It expressly assumed the judge would disqualify themself if personal bias, prejudice or knowledge of disputed facts supplied another ground. [Source: Opinion 14-07, p. 2]

In practice

The opinion distinguishes cases in which the former prosecutor participated personally or as a supervisor from cases handled only by former colleagues. Its answer addresses the latter category and does not decide whether a separate ground under Rule 21-211(A)(1) exists in a particular case. [Source: Opinion 14-07, p. 2]

Common questions

Q: Does prior employment in the district attorney's office alone require recusal from every case that office prosecutes?

A: No. The committee says former association with prosecutors who worked on a case does not itself require disqualification when the judge had no direct or supervisory participation. [Source: Opinion 14-07, p. 2]

Q: What former prosecution work does require recusal under the opinion?

A: Rule 21-211(A)(5)(b) requires disqualification for personal and substantial participation, including acting as prosecutor or supervisor in the case. [Source: Opinion 14-07, p. 2]

Q: Did the committee rule out disqualification for bias or personal knowledge?

A: No. It assumed the judge would disqualify themself if bias, prejudice or personal knowledge of disputed facts required it under Rule 21-211(A)(1). [Source: Opinion 14-07, p. 2]

Background and rules framework

The committee interpreted New Mexico Code of Judicial Conduct Rule 21-211(A)(5)(b) for former government lawyers and distinguished Rule 21-211(A)(5)(a), which concerns other lawyer associations. It also identified Rule 21-211(A)(1) as a separate potential ground for disqualification. [Source: Opinion 14-07, pp. 1–2]

Citations and references

New Mexico Code of Judicial Conduct:

• Rule 21-211(A)(1) and (A)(5)(a)–(b). Source: Opinion 14-07.

See also

• NM Judicial Ethics Op. 14-05: Former Hearing Officer
• NM Judicial Ethics Op. 21-01: Former Colleague as Witness

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 14-07

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Advisory Committee on the Code of Judicial Conduct

Hon. James J. Wechsler, Chair

HK MIKA REX XK KK
WOK KAUEKIX ERK
Paul L. Biderman, Esq.
Prof. Robert L. Schwartz
Hon. Freddie J. Romero
Hon. Sandra W. Engel

October 28, 2014

Re: Judicial Advisory Opinion No. 14-07

You are a recently-appointed district judge in a district that includes four counties. Immediately prior to your appointment, you served as a deputy district attorney assigned to one of those counties. In that capacity, you had supervisory authority for the cases prosecuted by the office of the district attorney in that county. In addition, you were assigned cases in two of the other counties when there was the need for a prosecutor to handle the cases. Although you appeared in

those cases, you did not exercise any supervisory role.

You have asked the Advisory Committee on the Code of Judicial Conduct whether the Code of Judicial Conduct requires you to disqualify yourself in cases filed by the office of the district attorney in the counties of your district for which you did not exercise supervisory authority. You have explained that you have disqualified yourself in all criminal cases in the county for which you had supervisory authority as well as any case in which you were either assigned as the prosecutor or

took any action.

Rule 21-211(A) NMRA requires a judge to disqualify himself or herself “in any proceeding

in which the judge’s impartiality might reasonably be questioned, including but not limited to the

following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding,

(5) The judge:

(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during the association; [or]

(b) served in governmental employment, and in such capacity
participated personally and substantially as a lawyer or public official concerning the proceeding... .

Your inquiry does not directly raise a question about Rule 21-211 (A)(1), and the Committee assumes that if you have any personal bias or prejudice or personal knowledge of facts that would require your disqualification, that you would disqualify yourself. Rather, your inquiry focuses on Rule 21-211(A)(5), in particular subsection (b) because of your governmental employment as a deputy district attorney.

Under Rule 21-211(A)(5)(b), you are required to disqualify yourself in any case in which you “participated personally and substantially.” Such a case would include any case in which you acted either as the prosecutor or in a supervisory capacity.

The Committee does not believe, however, that Rule 21-211(A)(5) requires your disqualification in cases in which you did not participate either directly or in a supervisory capacity merely because you were associated with other lawyers in the office of the district attorney who were substantially prosecuting the cases while you were a deputy district attorney. The Committee interprets Rule 21-211(A)(5) to address judges who served in governmental employment separately in subsection (b), such that they do not also fall within subsection (a) that would apply to other types of lawyer associations. See Charles Gardner Geyh, James J. Alfini, Steven Lubet & Jeffrey Shaman, Judicial Conduct and Ethics, § 4.14[2] at 4-59 (5th ed. 2013) (stating that the language of the 2007 Model Code, which is the same language of Rule 21-211(A)(5)(b), “is consistent with precedent where courts had exhibited reluctance to disqualify judges from cases in which their former governmental agencies appeared as counsel, even when the matter was pending within the agency when the judge left—provided that the judge was not personally involved”),

In summary, it is the opinion of the Committee that Rule 21-211(A) does not require your disqualification in cases involving the office of the district attorney in which you did not personally participate or act in a supervisory capacity.

Very truly yours,

wren Ge

Chair
cc: Paul L. Biderman, Esq.
Hon. Sandra W. Engel
Hon. Freddie J. Romero
Professor Robert L. Schwartz