Informal Opinion 05-2
November 22, 2005

Question:   The Board of District Court Judges has asked the Ethics Advisory Committee whether disqualification is necessary in a proceeding in which a judge has previously (1) held one of the attorneys in contempt; (2) sanctioned one of the attorneys; or (3) referred one of the attorneys to the Office of Professional Conduct.

Answer:   A judge is not required to automatically enter disqualification in any of the situations.

Discussion:   Canon 3E(1)(a) requires disqualification when a "judge has a personal bias or prejudice concerning a party." The question for the Committee is whether a perception of bias or prejudice is automatically created when a judge holds an attorney in contempt, sanctions an attorney, or refers an attorney to the Office of Professional Conduct.

In Informal Opinion 97-8, the Committee stated that disqualifying bias or prejudice "normally must be rooted in an extra-judicial source." A judge is usually not required to enter disqualification based on events or actions arising from a court proceeding. The extra-judicial source rule recognizes that court proceedings require judges to form opinions about litigants and to issue rulings adverse to the participants. The Code of Judicial Conduct also requires judges to maintain order and decorum in the courtrooms and to report unethical conduct of which they may become aware. See Canons 3B(3) and 3D. Because of these realities and responsibilities, a judge is typically not required to enter disqualification based on occurrences during court proceedings. A judge is only required to enter disqualification from occurrences during court proceedings if a judge's statements or actions exhibit deep-seated antagonism toward a party or attorney. See In re M.L., 965 P.2d 551, 556 (Utah App. 1998).

In Informal Opinion 98-12, the Committee cited Liteky v. U.S., 510 U.S. 540, 550 (1984) concerning the attitudes that will and will not require disqualification:

Not all unfavorable dispositions toward an individual, or his case, is properly described [as bias or prejudice]. One would not say for example, that world opinion is biased or prejudiced against Adolph Hitler. The words connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess . . . or because it is excessive in degree.

Consistent with the extra-judicial source rule, occurrences from judicial proceedings will only support disqualification when the court action or opinion is undeserved and indicates deep-seated antagonism. Each of the situations described by the Board of District Court Judges arises from a judicial proceeding. They would result from an attorney's interaction with a judge as a part of a case. Disqualification is therefore not required based solely on the fact that a judge had taken one of these actions.

The Virginia Judicial Ethics Advisory Committee, in Opinion 99-4, answered the question of whether a judge must enter disqualification when a judge has filed an ethics complaint against a lawyer with the Virginia State Bar. The Virginia committee stated that a judge is not required to enter disqualification. The Virginia committee cited the Alabama Judicial Inquiry Commission, in Opinion 97-655, which had concluded that disqualification is not required when a judge refers a lawyer to a professional conduct committee.

The Virginia committee cited Jeffrey M. Shaman et. al., Judicial Conduct and Ethics, 2d ed § 409, which addressed situations of contempt:

A judge is not automatically disqualified from presiding over the contempt of court proceedings by virtue of the fact the allegedly contemptuous behavior occurred in the presence of the judge or was directed at the judge. Even where the contemptuous conduct consists of strong, personal criticism of the judge, disqualification is not necessary. At some point, though, a line will be crossed where disqualification from contempt proceedings is mandated where a judge has become biased or prejudiced. Thus where a verbal attack upon a judge become particularly offensive, or where a judge becomes enraged at offensive conduct, recusal is necessary.

The Virginia committee noted that contempt and referral to a professional conduct committee are similar and neither situation requires disqualification.

This Committee agrees with the above authorities. Disqualification is not automatically required in any of the three situations mentioned in the Board of District Court Judges' request. Each of the situations is rooted in judicial sources and would not automatically indicate that a judge is biased or prejudiced against an attorney. In each of the situations, a judge would presumably be doing that which is expected as a part of the judge's duties. There may be situations in which a contempt proceeding, a referral to the bar, or an award of sanctions might require disqualification of a judge, but only if the judge had indicated, by words or conduct, deep-seated antagonism toward the attorney. Disqualification is not otherwise required.