Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 01-8

Date Issued: July 16, 2001

Recusal Based Upon Acquaintance With Party, Attorney or Witness

ISSUE

Must a judge recuse himself or herself merely because a party, attorney, or witness is an acquaintance of the judge?

FACTS

A judge realizes that he is an acquaintance of a party or a witness involved in a case before him or her. The judge has no business relationship with the party or witness, nor is there a close social or personal relationship between the two.

DISCUSSION

Canon 3E provides specific guidance on the issue of recusal. Those portions of that canon pertinent to the issue under consideration follow:

E. (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, or personal knowledge of disputed evidentiary facts concerning the proceeding;

The Commentary to Canon 3E suggests a somewhat expansive interpretation of the canon:

Under this rule, a judge is disqualified whenever a judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.

A judge should disclose information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification even if the judge believes there is no real basis for disqualification.

None of the Canons or Commentaries thereto expressly suggests that recusal is warranted simply because a witness or party is an acquaintance of the judge. In such situations, however, it is advisable for the judge to inform counsel and the parties of the situation. Disclosure of this information does not, of itself, trigger the provisions of Canon 3F dealing with remittal of disqualification.

The Canons, when read as a whole, encourage the prompt disposition of cases in the courts. 1 Recusal, when not required by the canons, necessarily delays the business of the court, and judges should not routinely recuse themselves merely because they may know an attorney, party or witness. Whether required or not, recusal imposes additional stress on parties and witnesses, increases the expense of litigation, and delays the resolution of issues before the court. Recusal is particularly disfavored where replacing the judge would cause a significant waste of judicial resources. Delaware Judicial Ethics Advisory Opinion 1997-4. The Canons

[do] not require a judge to recuse himself or herself and disrupt the orderly flow of the docket at the whim or unsupported suggestion of a party.

Davis v. Commonwealth, 21 Va. App. 587, 591 (1996).

Judges should be keenly aware that frequent recusal by a judge may lead the public to conclude that the judge is avoiding unpleasant cases or that the judge is not carrying his or her appropriate share of the court's work. Further, when a judge recuses himself or herself frequently, attorneys and litigants may well be encouraged to use recusal motions as a means of judge shopping.

Although the Committee does not intend their citation as an endorsement, some examples of situations that do not necessarily require recusal nevertheless may be helpful. 2 A judge is not required to recuse himself or herself simply because, while a prosecutor, the judge prosecuted the defendant before him. Davis, 21 Va. App. at 592. The mere fact that a fellow judge's spouse appears before the judge does not necessarily require disqualification. State of Washington Ethics Advisory Opinion 84-3. This is true even when such a judge was the best man at the wedding of the lawyer and the fellow judge. Delaware JPC 1992-2. A judge need not recuse himself or herself simply because, through prior judicial hearings, the judge is familiar with a party and his legal difficulties. Deahl v. Winchester Dept. of Social Services, 224 Va. 664, 672-73 (1983). There is no requirement that a judge recuse himself from a case because the defendant is an attorney who regularly practiced before the judge. Stamper v. Commonwealth, 228 Va. 707, 713-14 (1985).

Virginia's appellate courts have stated the standard by which recusal should be tested:

In Virginia, whether a trial judge should recuse himself or herself is measured by whether he or she harbors "such bias or prejudice as would deny the defendant a fair trial." Welsh v. Commonwealth, 14 Va. App. 300, 315 (1992), quoting Justus v. Commonwealth, 222 Va. 667, 673 (1981).

The judge must also consider

"the public's perception of his or her fairness, so that the public's confidence in the integrity of the judicial system is maintained."

Buchanan v. Buchanan, 14 Va. App. 53, 55 (1992).

It is, however, the public's perception, not the litigant's, that a judge must consider when deciding whether recusal is required to preserve the judicial system's integrity. Scott v. Rutherfoord, 30 Va. App. 176, 189 (1999).

The Committee, then, is of the opinion that a judge is not required to recuse himself or herself, and should not do so, merely because he or she is an acquaintance of a party, attorney, or witness involved in the proceeding before the judge.

REFERENCES

Canons of Judicial Conduct, Canons 3E and 3F.

Davis v. Commonwealth, 21 Va. App. 587 (1996).

Deahl v. Winchester Dept. of Social Services, 224 Va. 664 (1983).

Justus v. Commonwealth, 222 Va. 667 (1981.

Scott v. Rutherfoord, 30 Va. App. 176 (1999).

Stamper v. Commonwealth, 228 Va. 707 (1985).

Welsh v. Commonwealth, 14 Va. App. 300 (1992).

Delaware Judicial Ethics Advisory Opinion 1997-4.

Delaware JPC 1992-2. State of Washington Ethics Advisory Opinion 84-3.

FOOTNOTES

2 Although the situations which follow do not of themselves require recusal, other attending circumstances may lead the judge to conclude that recusal is necessary because of the appearance of impropriety or because the personal relationship between the judge and others involved, as opposed to the situation itself, requires recusal.

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry 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: July 17, 2001