The Legal Intelligencer / Recusal 'black hole of judicial ethics' in Pennsylvania

Commentary

All judges love to think of themselves as impartial and capable of being fair under any circumstance. And while in most instances we'd like to think the sentiment is true, it's also unrealistic. The reality of human nature is that we all have biases and at some point we all play favorites.

The rules governing Pennsylvania's judges seem ignorant of that reality, at least when it comes to recusal. Because the only rule is that it is up to each individual judge. It's a rule that puts litigants in a "damned if you do, damned if you don't" position. It also creates perception problems for the courts.

One noted legal ethics expert we spoke to described recusal as the "black hole of judicial ethics." We couldn't agree more.

Pennsylvania is a very chummy state, especially where politics and the legal community are concerned. Judges are where those two intersect. Given that, it's only natural that lawyers and parties with close ties to a particular judge may come before him or her. The common sense thing to do when a friend or close political ally appears before you is to recuse yourself, right?

Sadly, the common sense thing doesn't seem to be commonly practiced in Pennsylvania. When we recently asked a number of experienced lawyers (including a number of litigators) how many times it happens in Pennsylvania, they were at a loss.

Why?

Our view is that it is because of what we referenced earlier -- a belief on the part of the judges that they can be fair under any circumstances or perhaps a fear that if they recuse themselves, they are admitting they can't be impartial.

If it's the latter, that's the wrong way to look at it. Either way, too often judges in Pennsylvania don't pay enough attention to the appearance problems created when certain lawyers or parties appear before them.

Of course, some judges just don't care. While the Luzerne County judicial scandal provides a textbook example of what happens when judges don't recuse themselves from hearing cases in which their friends are involved, the situation isn't always nefarious.

We know of one instance a few years ago when the Pennsylvania Supreme Court heard a case in which a then-justice was friends with one of the litigants, who happened to be a lawyer. Did the justice recuse himself? No. In fact, he authored the majority opinion in the case. We know at least one attorney on the opposite side who wasn't aware of the friendship until after the case was decided.

While we aren't suggesting there was anything sinister about that situation, we are saying that it never should have happened. The justice should have made the friendship known and recused. Absent that, the other justices should have made recusal in that instance mandatory. The fact that the justice was allowed to author the lead opinion is an embarrassment.

What judges fail to understand, time and again, is that it is not a question of whether a judge's actions are bad. It's whether they appear bad and potentially undermine the public's confidence in the courts.

Pennsylvania Chief Justice Ronald D. Castille recently told The Legal Intelligencer that he doesn't have a problem when people ask him to recuse and he doesn't think most judges take it personally.

When we ran that comment by a dozen experienced lawyers, they were incredulous. Our experience and talking to sources indicates that quite a few judges take it personally. Most of the lawyers we spoke to said that asking for recusal is something they do as a last resort.

That shouldn't be the case. It probably should happen in Pennsylvania a lot more than it does.

As a number of lawyers told us, even if Justice Castille was right, and judges don't take recusal motions personally, how many actually do recuse? The answer we got: very, very few.

The Pennsylvania Supreme Court recently mandated the recusal of the entire Montgomery County Common Pleas Court because one of the judges -- a fairly new judge -- is one of many defendants in a piece of civil litigation. The recusal came at the request of one of the parties in the case.

The high court's move was rare. We can't recall ever having seen that before. (It should be noted that in this case Justice Seamus McCaffery did the right thing and recused himself because his brother was representing a party in the case.)

Although we're delighted the justices decided to err on the side of caution in ordering the whole Montgomery County Common Pleas Court to recuse itself, we wonder if the court would ever apply such a strict standard to itself or its individual members.

The court needs to come up with some clear guidelines. There should be mandatory recusal if a lawyer has given a gift to a judge, and in instances where the litigants are friends with a judge or have very close ties. There are numerous nuances regarding those scenarios that the high court needs to address.

If they fail to do so, then the legal community should not fear pressing on the issue of recusal when it is sincerely warranted, and not just as a litigation tactic.

Now that the high court has ordered the recusal of an entire county bench under fairly benign circumstances, absent clear rules, lawyers should use that example and drum it into the minds of judges until the common sense thing to do is commonly done in Pennsylvania.

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First published on December 27, 2010 at 12:00 am