Must a judge recuse from every case involving a lawyer who is a codefendant in a pending federal suit?

Plain-English summary

A judge and a lawyer who regularly appeared before that judge were codefendants in a federal suit arising from an earlier court matter. The judge asked about handling the lawyer’s other cases while the suit was pending.

The Commission said the shared litigation does not automatically disqualify the judge from all cases involving the lawyer. It required disclosure of their relationship and compliance with Trial Court Rule 17.01 et seq. whenever applicable. That process applies in every case involving the lawyer until the federal suit ends or one party has been dismissed and will not be considered a witness.

In practice

The opinion calls for disclosure and applicable Trial Court Rule 17.01 procedures during the stated period, while declining to impose automatic recusal.

Common questions

Q: Is disqualification automatic while both are defendants?

A: No. The Commission expressly rejected per se disqualification.

Q: When does the stated disclosure period end?

A: When the federal lawsuit ends, or one party is dismissed and will not be considered a witness.

Background and rules framework

Rule 2.11(A) addresses a reasonable question about impartiality; Rule 2.11(C) allows disclosure and waiver in circumstances other than bias or prejudice under (A)(1). The Commission cites the objective approach to recusal in Tennant and directs applicable Trial Court Rule 17.01 procedures.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.11(A)(1), (C) and Comments 2 and 5, disqualification and disclosure.

Court rules:

• Trial Court Rule 17.01 et seq., applicable disqualification procedure.

Cases:

• State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), relationship-based recusal.
• 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 2021-12
• WV JIC Advisory Opinion 2022-28

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2021-08, 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

April 6, 2021

Re: JIC Advisory Opinion 2021-08

Dear Judge

Your request for an adviso1y opinion to Counsel was recently reviewed by the Judicial Investigation Commission. The factual scenario giving 1ise to your request is as follows:

You are a defendant in a federal lawsuit. The lawsuit arises out of a court matter that you handled. A lawyer, who regularly appears before you and who represented the ex-wife in the underlying matter is a co-defendant in the suit. You want to know if you are disqualified from handling any cases involving the lawyer during the pendency of the federal suit. You also want to know whether any conflict is waivable. Lastly, you want to know a potential timeframe for any action you must take.

To address your questions, the Commission has reviewed Rule 2.11 of the Code of Judicial Conduct which provides:

Rule 2.11 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: ...

(1) The judge has a personal bias or prejudice concerning a party or a patiy's lawyer, or personal

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April 6, 2021
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knowledge of facts that are 111 dispute m the proceeding.

(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 basis of the judge's disqualification and may ask the patties 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 participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding.
The agreement shall be incorporated into the record of the proceeding.

Comment 2 to the Rule notes 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 states that "[a] judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification."

When a question of disqualification arises, an analysis must be made of when a current or former relationship causes a reasonable questioning of a judge's impartiality. In State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), the Court considered whether the circuit court was correct in holding that a search warrant issued by a magistrate was void because the magistrate was married to the Chief of Police and one of his officers had obtained the warrant. The Comt held that in any criminal matter where the magistrate's spouse was involved the magistrate would be disqualified from hearing that matter. The Court declined to extend a p er se rule to other members of the police force. The fact that the magistrate's spouse was the chief of police of a small agency did not automatically disqualify the magistrate who could be otherwise neutral and detached from issuing a warrant sought by another member of the police force.

In Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), the Court held that a judge should disqualify himself or herself from any proceeding in which his impa1tiality might reasonably be questioned. The Court noted that the avoidance of the appearance of impropriety is as impo1tant in developing public confidence in the judicial system as avoiding actual impropriety and that the judge should take appropriate action to withdraw from a case in which the judge deems himself or herself biased or prejudiced. Tennant cited the commentary to fonner Canon 3E(l) which

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April 6, 2021
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states that a judge shou ld timely disclose on the record information which he/she believes the parties 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 Comt set forth a balancing test between the two concepts. While giving consideration to the administration of justice 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-infonned, thoughtful and objective observer rather than the hypersensitive, cynical and suspicious person.

Based upon the foregoing, the Commission is of the opinion that you are not per se disqualified from handling any cases involving the lawyer during the pendency of the federal lawsuit. However, you must disclose the nature of the relationship and follow Trial Court Rule 17.01 et seq. whenever applicable. You should take this action in every case involving the lawyer until the federal lawsuit ends or one party has been dismissed and will not be considered a witness in the matter.

The Commission hopes that this opinion fully addresses the issues which you have raised. Please do not hesitate to contact the Commission should you have any questions, comments or concerns.

Sincerely,

(2~~~
Alan D. Moats, Chairperson
Judicial Investigation Commission

ADM/tat