Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 99-4

Date Issued: September 21, 1999

Judge's Recusal When the Judge has Filed a Complaint Against One of the Lawyers with the Virginia State Bar

ISSUE

Must a judge who files an ethics complaint with the Virginia State Bar against a lawyer recuse himself or herself in a case in which the lawyer represents a party?

Answer: No.

FACTS

A judge has knowledge that a lawyer has committed a violation of the Code of Professional Responsibility that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer and so informs the Virginia State Bar as provided by Canon 3D of the Canons of Judicial Conduct. Subsequently, the lawyer appears in the judge's court representing a party. The lawyer asks the judge to recuse himself.

DISCUSSION

Canon 3E provides, in part, as follows: "(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) The judge has a personal bias or prejudice concerning a party or a party's lawyer ..."

The Alabama Judicial Inquiry Commission in a similar case concluded that the judge's filing of a complaint against the attorney-litigant with the State Bar is not generally disqualifying. Alabama Judicial Inquiry Commission, Opinion 97-655.

Contempt proceedings are an analogous situation, and recusal is not required there. A treatise explains: 'A judge is not automatically disqualified from presiding over the contempt of court proceedings by virtue of the fact that the allegedly contemptuous behavior occurred in the presence of the judge or was directed at the judge. Even where the contemptuous conduct consists of strong, personal criticism of the judge, disqualification is not necessary. At some point, though, a line will be crossed where disqualification from contempt proceedings is mandated where a judge has become biased or prejudiced. Thus, where a verbal attack upon a judge becomes particularly offensive, or where a judge becomes enraged at offensive conduct, recusal is necessary. Citing Shaman, et al, Judicial Conduct and Ethics, 2d ed., § 4.09.

In Terrell v. Commonwealth, 12 Va. App. 285, 293 (1991), a judge refused to recuse himself after he had reported to the Virginia State Bar that the attorney in the case was not previously prepared for trial. In that case the Court stated: "...assuming arguendo some animosity between the trial judge and defense counsel, that does not suggest that the trial judge would deny a fair trial to the lawyer's indigent client." Further, citing Justus v. Commonwealth, 222 Va. 667, 673 (1981), the court said: "[i]t is within the trial judge's discretion to determine whether he harbors bias or prejudice which will impair his ability to give the defendant a fair trial."

The committee is of the opinion that a judge is not required to recuse himself or herself if an attorney against whom he has filed an ethics complaint is counsel as long as the judge, in the exercise of sound discretion, determines that he does not harbor bias or prejudice which would impair the judge's ability to give the party a fair trial.

REFERENCES

Canons of Judicial Conduct, Canon 3E.

Alabama Judicial Inquiry Commission, Opinions 97-655 and 97-656.

Justus v. Commonwealth, 12 Va App. 285 (1991).

Terrell v. Commonwealth, 222 Va. 667 (1981).

Shaman, et al, Judicial Conduct and Ethics, 2d ed., §4.09.

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry and Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry and Review Commission and the Supreme Court may in their discretion consider compliance with an advisory opinion by the requesting individual to be evidence of a good faith effort to comply with the Canons of Judicial Conduct provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are substantially the same. Order of the Supreme Court of Virginia entered January 5, 1999.

This page last modified: October 20, 1999