The Law of the Lawyer Judicial Ethics: Disqualification and Recusal

Abstract

Judicial ethics is an important topic for lawyers because most judges are lawyers, and because lawyers interact with judges, and are thereby "indirectly governed" by the law that governs judicial conduct. A survey of judicial conduct rules thus provides an opportunity to review similar concepts in the law governing lawyers.

Of course, the lawyer's role is partisan; to represent the client's interests zealously, within the bounds of the law. The touchstone ethic for judges is the opposite: impartiality, not partisanship. Like lawyers, judges have obligations of communication, competence, confidentiality, and conflict remediation, but these judicial obligations are intended to promote confidence in the independence, integrity, and impartiality of a public tribunal.

Just as lawyers are subject to their jurisdiction's version of the ABA Model Rules of Professional Conduct, judges are governed by their jurisdiction's judicial code, patterned after the ABA Model Code of Judicial Conduct and promulgated by the highest court. Federal judges are subject to the Code of Conduct for Federal Judges, adopted by the United States Judicial Conference. 175 F.R.D. 364 (1998). Supreme Court Justices are not governed by these rules.

As governmental employees, state and federal judges also are subject to statutory regulations. For example, federal statutes prohibit the practice of law by federal judges and create standards for disqualification. Both state and federal judges also are subject to criminal sanctions for violation of applicable statutory regulations.

Judges who leave the bench are subject not only to lawyer code provisions but also to court rules that regulate their subsequent practice.