December 3, 1996

The Ethics Advisory Committee has been asked whether a judge must enter disqualification in a case in which the attorney representing one of the parties has represented another client in a previous suit against the judge. The Committee also has been asked whether a judge must enter disqualification in a case in which the attorney representing one of the parties represented another client in presenting a complaint about the judge to the Judicial Conduct Commission. The issues are similar, each dealing with adversary proceedings against the judge, and will be treated together.

Canon 3E, Utah Code of Judicial Conduct, requires a judge to enter a disqualification where "the judge has a strong personal bias or prejudice concerning a party or a party's lawyer." The standard for disqualification set forth in the Canon is the same in the context of a party's lawyer as it is for a party. In Rogers v. Wilkins, 267 S.E.2d 86, 87 (S.C. 1980), a party who had brought a 1983 proceeding against a trial judge argued that the 1983 adversarial action, "standing alone," required the judge to disqualify himself from other proceedings involving the party. The Supreme Court of South Carolina disagreed, finding that there must be "independent evidence of bias or prejudice as a result of the 1983 action." Id. at 88.

The Committee agrees with the conclusion of the Rogers court and believes that the reasoning is easily extended to a party's attorney. An adversary proceeding against a judge does not automatically create the presumption that the judge is biased or prejudiced against the attorney involved in that proceeding. The adversary proceeding is a factor to be considered, but is not a dispositive factor.

Each situation must be analyzed separately and objectively. Disqualification may be necessary, but will depend on the factors associated with the previous adversary proceeding - e.g. the nature of the proceeding, comments made during the proceeding, results of the proceeding, the time that has passed since the proceeding was completed, whether the judge was sued in an individual or official capacity, etc.

When presented with a situation in which an attorney involved in a proceeding has represented another party in an adversarial proceeding against the judge, the judge must consider whether the previous proceeding affected his or her ability to be impartial. The judge must also consider whether a reasonable person, knowing all of the facts concerning the previous proceeding, would question the judge's ability to be impartial. See e.g. Informal Opinion 96-2. If the judge believes that his or her impartiality has been compromised or could reasonably be questioned, the judge should enter disqualification on his or her own initiative.

In conclusion, the fact that the attorney has previously been involved in an adversary proceeding against the judge, standing alone, does not require the judge's disqualification. A judge must evaluate whether factors associated with the proceeding have in fact affected the judge's impartiality or whether the judge's impartiality might reasonably be questioned.