In September 2019, the ABA Standing Committee on Ethics and Professional Responsibility issued a formal opinion entitled Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure. See ABA Formal Op. 488 (Sep. 5, 2019).
Rule 2.11(A) of the ABA Model Code of Judicial Conduct provides that a “judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned . . . .” See ABA Model Code Jud. Cond. r. 2.11(A). This rule calls for recusal when, for example, the judge, the judge’s domestic partner or a third-degree relative to either, has more than a de minimis interest in the proceeding or is a party, lawyer, or material witness in the matter. See id. r. 2.11(A)(2). However, the rule does not squarely address recusal from cases involving acquaintances, friends, and those with whom the judge shares a closer personal relationship. This opinion seeks to provide advice to judges presiding over such cases.
The opinion considers a judge and another person to be “acquaintances” when their interactions outside of court are “coincidental or relatively superficial,” when neither “seeks contact with the other, but they greet each other amicably” and cordially when they meet. See ABA Formal Op. 488 at 4. As to acquiantances, a judge “has no obligation to disclose his or her acquaintance with a lawyer or party to other lawyers or parties in a proceeding. A judge may, of course, disclose the acquaintanceship if the judge so chooses.”
The opinion considers a judge and another person to be “friends” when there is “some degree of mutual affection” and a “degree of affinity greater than being acquainted.” See id. However, the opinion acknowledges that all friendships are not the same. Some friendships are professional; some are social. Not all require recusal. Whether recusal is required from a case involving a friend is “essentially a question of degree” that turns “on the facts of the case.” See id. at 5-6. In close cases, the judge “should disclose to the lawyers and parties in the proceeding information about the friendship” even when the judge believes that there is no reason for recusal. Id. at 6.
Close Personal Relationships
The opinion considers a “close personal relationship” to go beyond “common concepts of friendship.” Such relationships include romantic relationships, romantic interests, former-spouse relationships, and “godparent” relationships. A judge must recuse “when the judge has a romantic relationship with a lawyer or party in the proceeding, or desires or is pursuing such a relationship.” Id. at 6. A judge should disclose all other close personal relationships even if the the judge believes that he or she can be impartial.
The opinion concludes as follows:
In summary, judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties, depends on the circumstances.Id. at 7.