ABA Formal Opinion 522 addresses a practical question litigators sometimes face: what must a lawyer do when the lawyer has reason to believe the judge should be disqualified?
The opinion’s basic answer is that a lawyer may have an affirmative duty to act, subject to an important limit grounded in client confidentiality. In Louisiana, applying that duty can be more complicated because the state’s catch-all recusal rule is both broad and still developing.
Formal Opinion 522 explains that a lawyer who knows facts reasonably likely to require a judge’s disqualification cannot simply remain silent and assume the judge will recognize the issue. Although judges bear primary responsibility for monitoring their own recusal obligations, the opinion suggests that silence in the face of known disqualifying facts could be conduct “prejudicial to the administration of justice,” potentially violating Model Rule 8.4(d).
Of course, ABA ethics opinions are advisory rather than binding. Still, they are often persuasive guidance on how rules based on the Model Rules may operate in practice—particularly when they suggest circumstances in which Rule 8.4(d) might impose an affirmative duty to act.
The opinion’s examples involve relatively straightforward situations: a judge who previously supervised the case while serving as a prosecutor, a judge whose spouse’s law firm is involved in the matter, or a judge with a business relationship tied to a family member. In each example, the lawyer knows a concrete fact that corresponds directly to a recognized ground for disqualification, and disclosure may therefore be required.
The major qualification is confidentiality. If the relevant information is protected as information relating to the representation of a client under Rule 1.6, the lawyer’s ability to disclose it is limited. Even if disclosure seems appropriate, the lawyer must consider whether the information may be revealed at all, whether client consent is required, and whether there is a narrower way to address the issue.
When disclosure is appropriate, the opinion suggests that it should be made to the judge with notice to opposing counsel, though other approaches may sometimes be preferable.
