Must judges recuse when a local lawyer is a party, and does that affect other cases where the lawyer only appears as counsel?
Apply this to your situation
This page answers the general question as of 2007. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
The requester described inconsistent circuit practices when a local lawyer was a party: some circuits routinely recused from that lawyer’s case, while others did not treat the lawyer’s party status as disqualifying.
The Commission did not announce a categorical rule. It directed each judge to decide what action the former Canon 3 duty to hear assigned matters and Canon 3E disqualification standard required in the situation. It said the Chief Justice would ultimately determine whether recusal was appropriate in cases where a judge chose to recuse.
In practice
The opinion gives no automatic answer for either the lawyer’s own case or unrelated appearances as counsel.
Common questions
Q: Did the JIC require automatic recusal when a local lawyer was a party?
A: No. It left the decision to each judge under the cited Canons.
Q: Did the lawyer’s other appearances automatically require recusal?
A: No categorical rule was stated.
Q: Who would ultimately assess a judge’s proposed recusal?
A: The opinion says the Chief Justice would decide appropriateness when a judge chose to recuse.
Background and rules framework
Former Canon 3B(1) required judges to hear assigned matters except when disqualification was required, and Canon 3E(1) required disqualification where impartiality might reasonably be questioned.
Citations and references
West Virginia Code of Judicial Conduct (former): Canons 3B(1) and 3E(1).
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2007-17, redacted
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
JUDICIAL INVESTIGATION COMMISSION
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 ¢ FAX (304) 558-0831
July 31, 2007
Re: JIC Advisory Opinion 2007-17
Dear
In a recent letter to the Judicial Investigation Commission you asked for an advisory opinion on the following questions:
Is a judge disqualified from presiding in a case in which a lawyer is a party when the same lawyer regularly appears in the judge’s court as counsel in other unrelated cases?
If the judge is disqualified in presiding in the cases in which the lawyer is a party, is the judge also disqualified in the cases in which the same lawyer appears only as counsel?
You stated that these questions are precipitated because of the different ways the circuits answer the questions. In some circuits when a local lawyer has been named plaintiff or defendant, all the judges in the circuit routinely recuse themselves and a judge from another circuit or a senior status judge is appointed by the Supreme Court to preside in the lawyer’s personal case. Whereas, in other circuits the fact that a local lawyer is sued is not considered a disqualifying event. Some judges will not handle cases in which local lawyers are parties while some judges handle those types of cases in their circuits and also handle the cases of the judges that won’t. You indicated that it was time for uniformity one way or another.
To address the questions which you have raised, the Commission reviewed Canon 3 of the Code of Judicial Conduct which states in relevant part:
July 31, 2007
Page Two
Canon 3. A judge shall perform the duties of judicial office impartially and diligently.
B. Adjudicative responsibilities.
(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.
E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, . . .
After reviewing this language contained in Canon 3, it is the opinion of the Commission that each judge confronted with the situations that you described in your correspondence should take such action as that judge feels appropriate under the language and requirements set forth in those relevant sections of Canon 3. It would remain each judge’s individual decision on how to handle those situations. Ultimately, the Chief Justice of the Supreme Court of Appeals would determine if recusal is appropriate in those cases where the judge decides to recuse himself/herself from a given case.
It is hoped that opinion addresses the issues which you raised in your correspondence. If there is any further question regarding this matter do not hesitate to
contact the Commission.
Very truly yours,
[signature]
Fred L. Fox, I, Chairperson
Judicial Investigation Commission
FLF,II:nb
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