Alan Cooper//February 28, 2011
Alan Cooper//February 28, 2011//
It can be a ticklish and touchy moment for a lawyer: the judge in a case has a conflict and needs to pass the file to a colleague. But whether, and how, to ask a judge to recuse herself can be a major source of heartburn.
As it turns out, judges are much more likely to recuse themselves on their own motion than after a request from an attorney.
In fact, two veteran circuit judges, Jane Marum Roush of Fairfax County and L.A. Harris Jr. of Henrico County, said they could not recall having a lawyer ask them to recuse themselves.
One reason for that, the judges say, judges generally know when to step aside. They and most of their colleagues are sensitive to the requirements of Section 3E(1) of the Canons of Judicial Conduct, which compels a judge to withdraw from “a proceeding in which the judge’s impartiality might reasonably be questioned.”
Many situations are obvious, such as presiding over the divorce of a prominent lawyer who appears regularly before the judge or hearing a case against a high-ranking official in the locality where they sit.
When they are less apparent, such as in a case involving a casual acquaintance as opposed to a close personal friend, Harris said he typically discloses the relationship to the attorneys and their clients and asks if anyone has a problem with him hearing the case.
Often, he attempts to further remove any pressure on the litigants by suggesting that they think about the circumstances and notify the clerk before the next hearing date if they would like for him to withdraw, Harris said.
The second major reason for the rarity of disqualification requests by lawyers is that “it’s always embarrassing for an attorney to ask a judge to recuse himself,” said Colonial Heights lawyer Neil Kuchinsky.
What the attorney is really saying is, “Judge, we don’t believe that you’re capable of being fair and impartial in this case, and we’re so concerned about your objectivity that we have to point it out to you,” he said.
“It’s not something that you lightly enter into,” agreed Craig S. Cooley, a criminal defense attorney in Richmond.
Both recalled cases in which they had done so with some trepidation. The more recent case involved Kuchinsky, who asked Colonial Heights Circuit Judge Timothy J. Hauler to recuse himself from a mother’s appeal of an award of custody to the father.
Kuchinsky made the request after Hauler told him that he had read the transcript from the proceeding in juvenile and domestic relations district court and advised him the result would be the same in circuit court unless he produced new evidence.
Hauler heard the case anyway and awarded almost $20,000 in attorney’s fees and costs against Kuchinsky’s client.
The Virginia Court of Appeals agreed with Kuchinsky that Hauler had prejudged what was supposed to have been de novo review and sent the case back for trial by a different judge in Alexander v. Flowers, (VLW 008-7-135).
Cooley was less successful in his defense of a juvenile in a capital murder case from the 1980s. He heard that the late Richmond Circuit Judge William E. Spain, who had been assigned the case, had commented in open court that the victim was a longtime close friend.
Cooley filed motions seeking a transcript of the proceeding in which the comment was allegedly made and asking Spain to recuse himself. Spain denied both motions and ultimately sentenced Ballard after a jury convicted him of first-degree rather than capital murder. On appeal, Cooley argued unsuccessfully that this client had a constitutional right to be sentenced by a jury, even though state law left juvenile sentencing to a judge, Ballard v. Commonwealth, 228 Va. 213.
The motions created some friction between him and a judge he appeared before frequently, Cooley said.
Other requests have been less problematic, he said. He recalled another case in which the judge did not recall that his client had once sued him to collect a debt and recused himself once he was reminded of the incident.
Hearings on the reelection of judges recently have shown that judges ignore potential conflicts at their peril.
The Court of Appeals opinion in Kuchinsky’s case was problem for Hauler two years ago, as was a Judicial Inquiry and Review Commission finding that 6th District J&DR Judge Jacqueline R. Waymack should not have handled a bond hearing shortly after she was appointed to the bench for the client of her former law partner.
Both judges ultimately were reelected but not before marshaling the support of lawyers in their circuits at special legislative hearings for them.
Another judge, William N. Alexander II, ran into difficulty last year after several legislators contended that he should have recused himself from presiding over a special grand jury investigation of Franklin Sheriff Ewell Hunt.
Alexander was eventually reappointed to a third term, but not before acknowledging that he probably should not have empaneled the grand jury or handpicked it. One of the members was a business partner of the longtime former sheriff whose son Hunt had defeated in the November 2007 election after the father had retired.
Questions about recusals probably come up most frequently shortly after a judge takes the bench, especially if he or she has been a prosecutor or the member of a sizable law firm.
Most judges don’t hear cases from former law partners for the first six months they are on the bench, and some push it back to a year. Judges who have been prosecutors usually disqualify themselves from hearing cases involving defendants their office prosecuted, even if they were not personally involved in the case.
And another form of partnership – marriage – comes up more and more frequently and lasts far longer than six months or a year. For example, Senior Supreme Court Justice Elizabeth B. Lacy recuses herself from hearing cases from Reed Smith because her husband is a partner there.
Justice S. Bernard Goodwyn likewise recuses himself from cases involving Hunton & Williams because his wife is an attorney there.
Appellate judges typically don’t state a reason for disqualifying themselves, but Albemarle General District William Barkley probably wishes he had been a little more forthcoming about the employment status of his wife, Rhonda Quagliana.
She’s a partner in the firm of St. John, Bowling, Lawrence & Quagliana, and her partner, Francis McQ. Lawrence, appeared as counsel for the defendant in a civil suit.
Barkley told the plaintiff that a member of his family worked for Law-rence’s firm. The plaintiff pictured a nephew working in a menial position and signed a waiver that she did not object to having Barkley hear the case.
Later, she was miffed to learn that the relative at the firm was one of the partners and Barkley’s wife.
She filed a complaint with the Judicial Inquiry and Review Commission, which told her that she could have asked the nature of the relationship before signing the waiver.
The litigant made her point, however, by telling her story to The Hook, a Charlottesville newspaper.
The tougher problem, Kuchinsky said, is clients who are skeptical about a judge and push him to ask the judge to step aside for reasons that don’t merit recusal, such as having ruled against them or an acquaintance in an earlier case.
“You can try to educate the client, but if you don’t do what they want, it’s ‘I told you so’ and maybe you were in on it, too.”