Can a lawyer file an affidavit to disqualify a judge based on the judge's reputation, weigh the effect on the lawyer's own practice, and must the lawyer tell the client about the option?
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This page answers the general question as of 2018. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
A defense lawyer in a personal-injury case believes the assigned judge has a reputation for favoring personal-injury plaintiffs, though the lawyer has no reason to think the judge is biased against this lawyer or client personally. The lawyer weighs filing an affidavit and motion for change of judge under ORS 14.260, but worries that doing so could require similar motions in all the lawyer's cases and could harm the lawyer's standing with this and other judges. The opinion asks whether the lawyer may file the affidavit, whether the lawyer may weigh the impact on the lawyer's other clients or reputation, and whether the lawyer must advise the client about the option.
On filing, the opinion explains that ORS 14.260 lets a lawyer or party seek disqualification by affidavit stating a belief that they cannot have a fair and impartial trial and that the motion is made in good faith and not for delay. Because Oregon RPC 3.3(a)(1), 8.2(a), and 8.4(a)(3)-(4) forbid false statements, the lawyer may file only if the lawyer can truthfully and subjectively answer yes to both: that the lawyer honestly believes the client cannot get a fair and impartial trial before this judge, and that the motion is in good faith and not for delay. The opinion stresses the difference between seeking disqualification to ensure a fair proceeding (good faith) and doing so to gain tactical advantage, delay, or to judge- or forum-shop (bad faith); filing primarily for the latter reasons would violate the rules. The opinion does not decide whether reputation-based bias is a proper statutory ground.
On the lawyer's own interests, the opinion applies Oregon RPC 2.1 (independent professional judgment) and Oregon RPC 1.7(a)(2). It concludes the lawyer must evaluate the disqualification decision case by case with only the client's interests in mind, and may not consider the effect on the lawyer's own practice, reputation, or other current or future clients; if a significant risk exists that those personal interests would materially limit the lawyer's analysis, Oregon RPC 1.7(a)(2) requires withdrawal unless the lawyer complies with Oregon RPC 1.7(b). The lawyer may, however, consider effects on the lawyer's credibility or relationship with judges to the extent they could affect the representation of this client, such as how other judges who might inherit the case would treat this client. On advising the client, the opinion applies Oregon RPC 1.4 and 1.2(a): if the lawyer concludes a motion cannot ethically be filed, there is nothing to discuss; if it could be filed, the lawyer must consult the client about the concerns, the ORS 14.260 options, and the pros and cons. Because filing is a decision about "means," not one of the decisions reserved to the client like settlement, the lawyer may make the final call even over the client's objection after adequate consultation, subject to the client's right to discharge the lawyer; in criminal cases, Sixth Amendment considerations may broaden the client's authority.
In practice
This opinion (issued 2018) interprets the current Oregon Rules of Professional Conduct, but it is more than five years old, so readers should verify the current rule text before relying on specifics. The opinion holds that a change-of-judge affidavit is ethical only when the lawyer can truthfully attest to both the fair-trial belief and good faith, and that using it for delay or judge-shopping violates Oregon RPC 3.3, 8.2, and 8.4. Per the opinion, the decision must serve the client alone: the lawyer may not weigh the lawyer's own reputation or other clients, except as those bear on this client's case. The opinion holds that the lawyer must consult the client when filing is a real option, but may make the final means decision after consultation.
Common questions
Q: Can a lawyer file to disqualify a judge just because of the judge's reputation?
A: Only in good faith. The opinion concludes the lawyer may file an ORS 14.260 affidavit only if the lawyer can truthfully state both that the client cannot get a fair and impartial trial before the judge and that the motion is in good faith and not for delay.
Q: Is it ethical to seek disqualification to get a better judge?
A: No. The opinion concludes that using a change-of-judge affidavit for tactical advantage, delay, or judge- or forum-shopping is bad faith and would violate Oregon RPC 3.3, 8.2, and 8.4.
Q: Can the lawyer factor in the effect on the lawyer's own reputation or other clients?
A: No. The opinion concludes the lawyer must decide based only on this client's interests, not the lawyer's practice, reputation, or other clients, though the lawyer may weigh effects that bear on this client's case.
Q: Must the lawyer tell the client about the disqualification option?
A: If it is a real option, yes. The opinion concludes that when the lawyer could ethically file, the lawyer must consult the client about the concerns, options, and pros and cons; if filing would be unethical, there is nothing to discuss.
Background and rules framework
The opinion interprets Oregon RPC 3.3(a)(1) (candor to the tribunal), Oregon RPC 8.2(a) (statements about judges), Oregon RPC 8.4(a)(3)-(4) (dishonesty and conduct prejudicial to the administration of justice), Oregon RPC 2.1 (independent professional judgment), Oregon RPC 1.7(a)(2) (personal-interest conflicts), and Oregon RPC 1.4 and 1.2(a) (communication and allocation of authority), corresponding to Model Rules 3.3, 8.2, 8.4, 2.1, 1.7, 1.4, and 1.2. It reads those rules against the ORS 14.260 change-of-judge procedure.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 3.3(a)(1) / Model Rule 3.3 (candor to the tribunal)
- Oregon RPC 8.2(a) / Model Rule 8.2 (statements about a judge's qualifications or integrity)
- Oregon RPC 8.4(a)(3), (4) / Model Rule 8.4 (dishonesty; conduct prejudicial to the administration of justice)
- Oregon RPC 2.1 / Model Rule 2.1 (independent professional judgment)
- Oregon RPC 1.7(a)(2) / Model Rule 1.7 (personal-interest conflicts)
- Oregon RPC 1.4, 1.2(a) / Model Rules 1.4, 1.2 (communication; allocation of authority)
Statutes:
- ORS 14.260 (affidavit and motion for change of judge)
Cases:
- State ex rel. Kafoury v. Jones, 315 Or 201, 843 P2d 932 (1992), change of judge
See also
- OSB Ethics Op. 2009-181: Government Lawyer Employment Negotiations
- OSB Ethics Op. 2005-120: Lawyers Switching Firms, Prosecutor/Judge Screening
- OSB Ethics Op. 2009-182: A Current Client's Bar Complaint and Withdrawal
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2018-193.pdf
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