Must a judge disclose or recuse when a lawyer belonged to the same fraternity at another school and time?

Plain-English summary

A judge and a lawyer in a contested custody case had belonged to the same fraternity, but at different schools in different eras. They had not known one another in college and had no other affiliation beyond the lawyer’s appearances in court.

The Commission concluded that this remote connection did not require either disclosure or automatic disqualification under Rules 1.2 and 2.11. It explained that those rules do not require action for every connection between a judge and a lawyer, litigant or witness.

In practice

On the stated remote-affiliation facts, the opinion does not require the judge to disclose the fraternity link or step aside.

Common questions

Q: Must the judge recuse because of the shared fraternity?

A: No. The Commission found no required per se disqualification.

Q: Must the judge disclose the connection?

A: No. The Commission said disclosure was not required given how remote the connection was.

Background and rules framework

Rules 1.2 and 2.11 address public confidence and disqualification when impartiality might reasonably be questioned. The Commission discussed Rule 2.11(C), its disclosure comments, and Tennant’s objective recusal approach.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 1.2 and Comment 5, appearance of impropriety.
• Rule 2.11(A), (C) and Comments 2 and 5, disqualification and disclosure.

Cases:

• Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), objective disqualification and disclosure.

See also

• WV JIC Advisory Opinion 2020-27
• WV JIC Advisory Opinion 2021-08

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2020-24, redacted

Original opinion text

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

JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831

October 20, 2020

Re: JIC Adviso1y Opinion 2020-24

Dear Judge

Your recent request for an advisory opinion was reviewed by the Judicial Investigation Commission. The facts giving 1ise to your question are as follows:

While in undergraduate school at a college in Kentucky, you were a member of the Fraternity. One of the attorneys in a hotly contested child custody case before you has mentioned being a member of the same fraternity but at a different undergraduate school in South Carolina during a different era occurring probably before you were born. You did not know the attorney in college and have had no other affiliation with him other than that he represents patties in your court. One of the parties has questioned on social media whether you have a duty to disclose the fraternity link and/or disqualify yourself from presiding over any fw1her proceedings.

To address your question, the Commission has reviewed Rules 1.2 and 2.11 of the Code of Judicial Conduct which state:

Rule 1.2 - Confidence in the Judiciary

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.

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October 20, 2020
Page 2 of4

Rule 2.1 l - Disqualification

(A) A judge shall 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:

( l) 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.
(2) The judge knows that the judge, the judge's spouse or domestic partner, or a person within the third degree of relationship to either of them or the spouse or domestic pa1tner of such a person is: (a) a party to the proceeding, or an officer, director, general pa1tner, managing member, or trustee of a patty; (b) acting as a lawyer in the proceeding; (c) a person who bas more than a de minimis interest that could be substantially affected by the proceeding; or (d) likely to be a material witness in the proceeding.
(3) The judge knows that he or she, individually or as a fiducia1y, or the judge's spouse, domestic pa1tner, parent, or child, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or is a party to the proceeding.
(4) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision or opinion, that commits or appears to commit the judge to reach a pa1ticular result or rule in a particular way in the proceeding or controversy.
(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 such association; (b) served in governmental employment, and in such capacity pa1ticipated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; (C) was a material witness concerning the matter; or (d) previously presided as a judge over the matter in another court.

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(l), may disclose on the record the

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October 20, 2020
Page 3 of 4

basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without pa1ticipation by the judge or court personnel, that the judge should not be disqualified, the judge may pa1ticipate in the proceeding. The agreement shall be incorporated into the record of the proceeding.

( emphasis added).

Thus, pursuant to Rule 2.1 l(C), the only time a judicial officer should voluntarily disqualify himself or herself is when the judge has an actua l or perceived personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding. Comment 5 to Rule 1.2 notes:

Actual improprieties include violations of law, cou1t rnles or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge.

Meanwhile, Comment 2 to Rule 2.11 states that " [a] judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed." Comment 5 provides that "[a] judge should disclose on the record information that the judge believes the patties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification."

Tennant v. Marion Health Care Foundation, 194 W. Va. 97,459 S.E.2d 374 (1995) is instructive to the two issues at hand. In Tennant, plaintiff brought a medical malpractice suit against defendant doctors and hospital. ln January 1994, the medical malpractice case went to trial. Following the presentation o f evidence, the jury found in favor of the defendant. Meanwhile, in March 1993, the law finn representing defendant was retained by the liability carrier for the state to defend the Judge and others in a civil rights claim in federal court. In February 1994, summa1y judgment was granted in the federal case. When the judge received a copy of the federal order, he realized he had a potential conflict and immediately disclosed the nature of the relationship with defense counsel to the parties in the medical malpractice action. The Chief Justice of the Supreme Cou1t of Appeals of West Virginia permitted the judge to recuse himself in the malpractice action and appointed another judge to hear post-trial motions. Following entry of the judgment order, plaintiff filed a motion to set aside the verdict or grant a new trial on the basis that he was prejudiced by the Judge's relationship with defense counsel in the civil rights case. The new judge in the medical malpractice action granted a new

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tiial based on the appearance of impropriety. The defendant appealed the ruling to the Supreme Com1 which reversed the decision of the trial court.

The Court held that a judge should disqualify himself/herself from any proceeding in which his/her impartiality might reasonably be questioned. The Court noted that the avoidance of the appearance of impropriety is as important in developing public confidence in the judicial system as avoiding actual impropriety itself and that the judge should take approptiate action to withdraw from a case in which the judge deems himself/herself biased or prejudiced. Tennant cited the commentary to Canon 3E(l) which states that a judge should timely disclose on the record info1mation which he/she believes the pa11ies or their lawyers might consider relevant to the question of disqualification. Litigants and counsel should be able to rely on judges complying with the Code of Judicial Conduct. There is no obligation imposed on counsel to investigate the facts known by the judge which could possibly disqualify the judge. The judge has a duty to disclose any facts even if the judge does not feel that they are grounds for disqualification sua sponte.

Tennant also addressed the rule that a judge has an equally strong duty to sit where there is no valid reason for recusal. In so doing, the Cow1 set forth a balancing test between the two concepts. While giving consideration to the administration ofjustice and the avoidance of the appearance of unfairness, a judge must also consider whether cases may be unfairly prejudiced or delayed or discontent may be created through unfounded charges of prejudice or unfairness made against the judge. The Court noted that the standard for recusal is an objective one. Facts should be viewed as they appear to the well-informed, thoughtful and objective observer rather than the hypersensitive, cynical and suspicious person.

Based upon the foregoing, it is evident that Rules 1.2 and 2.11 do not require disclosure/disqualification in every connection between judge and lawyer, litigant or witness. The instant connection is remote in nahire and therefore Rules 1.2 and 2. 11 do not apply. Therefore, the Commission finds that a per se disqualification is not required in this instance. Moreover, you are not required to disclose the matter give n its remoteness. It is hoped that this opinion fully addresses the issues which you have raised. If there is any fu11her question regarding this matter do not hesitate to contact the Commission

Sincerely,

Alf?!:oa~C
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Judicial Investigation Commission

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