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Connecticut Committee on Judicial Ethics
Informal Opinion Summaries

2013-46 (Emergency Staff Opinion issued November 8, 2013)
Appearance of Impropriety; Disclosure/Disqualification; Bias & Prejudice Rules 1.2 & 2.11; Practice Book §1-22; General Statutes §51-51k 
 
Issue: 
A complaint against a Judicial Official was filed with the Judicial Review Council (hereinafter, JRC). May a Judicial Official preside over a trial involving an attorney who is a member of the Judicial Review Council?

Facts: The complaint has not yet been reviewed by the JRC.  A lawyer who is a member of the JRC is scheduled to start a trial before the Judicial Official while the complaint is pending.  If the trial goes longer than anticipated, the hearing on the trial will be continued to a date after the JRC has reviewed the complaint. 

Applicable Rules:  Rule 1.2 states that “a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.  The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”
 
Rule 2.11 states, in relevant part, as follows:
 

(a)  A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned including, but not limited to, the following circumstances:

(1)  The judge has a personal bias or prejudice concerning a party or a party’s lawyer….

(c)  A judge subject to disqualification under Rule, other than for bias or prejudice under subsection (a)(1), may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification, provided that the judge shall disclose on the record the basis of such disqualification.  If, following the disclosure, the parties and lawyers agree, either in writing or on the record before another judge, that the judge should not be disqualified, the judge may participate in the proceeding….

(e)  A judge is not automatically disqualified from sitting on a proceeding merely because a lawyer or party to the proceeding has filed a lawsuit against the judge or filed a complaint against judge with the judicial review council.  When the judge becomes aware that such a lawsuit or complaint has been filed against him or her, the judge shall, on the record, disclose that fact to the lawyers and parties to the proceeding before such judge and shall thereafter proceed in accordance with Practice Book Section 1-22 (b).

Practice Book § 1-22(b) states as follows:
 
(b)  A judicial authority is not automatically disqualified from sitting on a proceeding merely because an attorney or party to the proceeding has filed a lawsuit against the judicial authority or has filed a complaint against the judicial authority with the judicial review council.  When the judicial authority has been made aware of the filing of such lawsuit or complaint, he or she shall so advise the attorneys and parties to the proceeding and either disqualify himself or herself from sitting on the proceeding, conduct a hearing on the disqualification issue before deciding whether to disqualify himself or herself or refer the disqualification issue to another judicial authority for a hearing and decision.
 
Conn. Gen. Stat. § 51-51k (j) states that the Judicial Review Council shall adopt regulations “to provide standards for the identification of and procedures for the treatment of conflicts of interest for council members, which standards shall require that any professional or ethical codes of conduct shall apply to any professional member of the council subject to such codes of conduct.”  In accordance with that statutory provision, the JRC adopted Regulation § 51-51k-13, entitled conflicts of interest.  Subsection (a) states that any member of the JRC who has a conflict of interest in any matter before the Council shall be disqualified from participating in any proceeding of the Council in that matter.  Subsection (b) states, in part, that a member shall have such a conflict of interest when such member, his or her spouse, his or her child, or his or her business associate “(6) is an attorney who has any matter pending in a trial court or an appeal court involving a respondent against whom a complaint has been made”.
  
Emergency Staff Opinion: The inquiry was circulated to the Committee members. Input was solicited and received. Based upon the facts provided, including that a complaint is pending and that the attorney is disqualified from participating in the JRC proceeding involving the inquiring Judicial Official, the Judicial Official was advised that he/she is not automatically disqualified from hearing the case. If the Judicial Official does not recuse himself or herself, the Judicial Official should follow the same procedure that would apply if the attorney member of the JRC were a complainant before the JRC.  In particular, the Judicial Official should disclose on the record that a complaint was filed, that the attorney is a member of the JRC, but as the Judicial Official understands it, is disqualified from participating in the complaint against the Judicial Official, and then proceed in accordance with Practice Book § 1-22 (b).

Committee on Judicial Ethics

 


 

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