Section 10.3: Disqualification and Extrajudicial/Political Activities (Canons 2, 3, 4)

Disqualification and Extrajudicial/Political Activities (Canons 2, 3, 4)

Disqualification (Recusal)

Under Model Rule 2.11, a judge must disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. This is the general, catch-all standard for disqualification. Even if no specific rule applies, if a reasonable, objective person would doubt the judge's neutrality, the judge must step aside. The MPRE heavily tests this general standard alongside the specific, mandatory grounds for disqualification.

Mandatory Grounds for Disqualification

The Model Code outlines several specific scenarios where disqualification is mandatory:

1. Personal Bias or Prejudice

Disqualification is mandatory if the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or has personal knowledge of disputed evidentiary facts in the proceeding. For example, if a judge has expressed strong animosity toward a defendant in the past, or if the judge witnessed the car accident that is the subject of the lawsuit, the judge must recuse themselves.

2. Prior Involvement as Lawyer, Witness, or Public Official

A judge must disqualify themselves if:

• The judge served as a lawyer in the matter in controversy.
• The judge was associated with a lawyer who participated substantially in the matter during their association.
• The judge was a material witness in the matter.
• The judge served in governmental employment and participated personally and substantially as a public official concerning the proceeding.

3. Family Relationships (The Third Degree Rule)

A judge must step down if a person within the third degree of relationship (or the spouse of such a person) is involved in the case. The third degree of relationship includes parents, children, grandparents, grandchildren, great-grandparents, great-grandchildren, siblings, aunts, uncles, nieces, and nephews. First cousins are in the fourth degree and do not trigger mandatory disqualification, though they may under the general "impartiality" standard if the relationship is close.

Mandatory recusal is triggered if any third-degree relative is:

• A party, or an officer, director, general partner, or trustee of a party.
• Acting as a lawyer in the proceeding.
• A person who has more than a de minimis interest that could be substantially affected by the proceeding.
• Likely to be a material witness.

For example, if a judge's niece is an associate at the law firm representing the plaintiff, and she has worked extensively on the case, the judge must disqualify themselves. If the niece is a partner at the firm but has not worked on the case, the judge must still disqualify themselves because a partner has a direct financial interest in the firm's cases, which represents more than a de minimis interest.

4. Economic Interests

Under Rule 2.11(A)(3), a judge must disqualify themselves if the judge, the judge’s spouse or domestic partner, parent, child, or any other family member residing in the household, has an economic interest in the subject matter in controversy or in a party to the proceeding.

• De Minimis Standard: An "economic interest" means ownership of more than a de minimis legal or equitable interest. Any direct stock ownership in a party, no matter how small (even one share of stock), is a disqualifying interest.
• Mutual Fund Exception: Ownership of shares in a mutual fund or common investment fund is not a disqualifying economic interest in the underlying securities held by the fund, unless the judge participates in the management of the fund or the proceeding could substantially affect the value of the fund itself.
• Other Exceptions: Government securities, bank deposits, and insurance policies are not economic interests unless the outcome of the proceeding could substantially affect their value (e.g., if a lawsuit threatens the solvency of the bank where the judge holds a deposit).

Remittal (Waiver) of Disqualification

Under Rule 2.11(C), a judge who is subject to disqualification (other than for personal bias or prejudice) may disclose on the record the basis of the disqualification. The judge may ask the parties and their lawyers to consider, outside the presence of the judge, whether to waive the disqualification. If the parties and lawyers agree, without any participation or pressure from the judge, that the judge should not be disqualified, and the agreement is incorporated into the record, the judge may participate in the proceeding.

Crucial Distinction: Disqualification based on personal bias or prejudice concerning a party or lawyer cannot be remitted or waived. It is an absolute bar to the judge's participation.

Extrajudicial Activities (Canon 3)

Canon 3 requires a judge to conduct personal and extrajudicial activities in a manner that minimizes the risk of conflict with judicial obligations.

1. Speaking, Writing, Lecturing, and Teaching

Under Rule 3.1, judges are encouraged to write, lecture, teach, and speak on law, the legal system, and the administration of justice. They may receive reasonable compensation and reimbursement of expenses for these activities under Rule 3.12, provided the source of the payments does not give the appearance of influencing the judge or creating a conflict of interest.

2. Testimony as a Character Witness

Under Rule 3.3, a judge is strictly prohibited from testifying as a character witness in any adjudicatory proceeding or otherwise vouching for the character of a person, except when duly summoned by a subpoena. A judge must never volunteer to serve as a character witness, as doing so abuses the prestige of the judicial office.

3. Civic, Charitable, and Religious Organizations

Under Rule 3.7, a judge may serve as an officer, director, trustee, or nonlegal advisor of a civic, charitable, or religious organization, subject to strict limits:

• No Personal Solicitation: A judge cannot personally solicit funds for the organization, except from family members or other judges over whom they have no supervisory authority.
• Fundraising Events: A judge may assist in planning fundraising and managing investments, but cannot be the guest of honor, speaker, or featured presenter at the organization's fundraising events. (A judge may, however, attend such events).

4. Financial and Business Restrictions

Under Rule 3.11, a judge may manage personal investments (stocks, bonds, real estate). However, a full-time judge is prohibited from serving as an officer, director, partner, manager, advisor, or employee of any business entity.

• Family Business Exception: A judge may manage or participate in a business entity closely held by the judge or members of the judge's family, but only if the business does not take too much time, does not lead to frequent disqualification, and does not involve the judge in transactions with persons likely to come before the court.

5. Practice of Law and Fiduciary Activities

• Practice of Law (Rule 3.10): A full-time judge must not practice law. They may give uncompensated legal advice and draft legal documents for family members, but they cannot act as an advocate or representative in any forum.
• Fiduciary Positions (Rule 3.8): A judge must not serve as an executor, administrator, trustee, guardian, or other fiduciary, except for the estate, trust, or person of a member of the judge's family, and only if it does not interfere with judicial duties.

Political and Campaign Activities (Canon 4)

Canon 4 governs the political and campaign activities of judges and judicial candidates. To maintain judicial independence, judges must remain insulated from partisan politics.

General Prohibitions on Political Activities

Under Rule 4.1, a judge or judicial candidate is prohibited from:

• Acting as a leader or holding office in a political organization.
• Making speeches on behalf of a political organization.
• Publicly endorsing or opposing a candidate for any public office.
• Making contributions to political organizations or candidates.
• Attending political gatherings.

Campaign Fundraising Rules for Elective Office

For judges who must run in public elections, the rules allow campaign activities but place strict boundaries on fundraising:

• No Personal Solicitation: A candidate (including an incumbent judge) must not personally solicit or accept campaign contributions.
• Campaign Committees: Under Rule 4.4, the candidate must establish a campaign committee to solicit and accept contributions, manage campaign funds, and obtain public endorsements. The campaign committee may solicit contributions from lawyers and the public, but the candidate must remain insulated from the identity of individual contributors to the extent possible.