Lawyers and the Legal System

Question 1

Communications about lawyers services include…

Answer 1

This rule governs all communications about a lawyer’s services, however transmitted. MRPC 7.1, cmt. 1. Thus, statements made in letters, e-mails, telephone calls, and other forms of communication, as well as in advertising permitted by the Model Rules, would be covered by the rule.

Question 2

You can’t create unjustified expectations. how can you remedy if a commercial might?

Answer 2

A communication that truthfully reports a lawyer’s achievements on behalf of clients may be misleading if presented in a manner that may lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public. MRPC 7.1, cmt. 3.

Question 3

Unsubstantiated comparisons

Answer 3

An unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated.

Question 4

Elements allowed

Answer 4

This rule permits public dissemination of information concerning a lawyer’s name or firm name, address, email address, website, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references; and other information that might invite the attention of those seeking legal assistance. MRPC 7.2, cmt. 1.

Question 5

Key element of advertisement

Answer 5

Any communication about a lawyer or law firm’s services must include the name and contact information of at least one lawyer or law firm responsible for its content. MRPC 7.2(d). Contact information includes a website address, a telephone number, an email address or a physical office location. MRPC 7.2(d), cmt. 12.

Question 6

requirements to say youre a specialist

Answer 6

However, a lawyer is not permitted to state or imply that she is certified as a specialist in a particular field of law, unless:

i) The lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and
ii) The name of the certifying organization is clearly identified in the communication.

Question 7

Two cases that can say theyre a specialist regardless

Answer 7

1) Patent lawyers

If a lawyer is admitted to practice before the United States Patent and Trademark Office, that lawyer may use the designation “Patent Attorney” or a substantially similar designation. MRPC 7.2(c), cmt. 9.

2) Proctors in admiralty

A lawyer engaged in Admiralty practice may use the designation “Admiralty,” “Proctor in Admiralty,” or a substantially similar designation. MRPC 7.2(c), cmt. 9.

Question 8

Firm names, letterhead and professional designations are …

Answer 8

communications concerning a lawyer’s services, and are therefore subject to MRPC 7.1.

Question 9

Why can sullivan and cromwell keep those names even though sullivan is dead?

Answer 9

A firm may be designated by (i) the names of all or some of its current members, (ii) the names of deceased members where there has been a succession in the firm’s identity, or (iii) a trade name if it is not false or misleading. A lawyer or law firm also may be designated by a distinctive website address, social media username or comparable professional designation that is not misleading. MRPC 7.1, cmt. 5.

Question 10

Firms names improper if

Answer 10

A law firm name or designation is also misleading if it implies a connection with:

i) A government agency;
ii) A deceased lawyer who was not a former member of the firm;
iii) A lawyer not associated with the firm or a predecessor firm;
iv) A nonlawyer; or
v) A public or charitable legal services organization.

MRPC 7.1, cmt. 5.

Question 11

Names of firms of lawyers holding public office

Answer 11

The name of a lawyer holding a public office is not permitted to be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. MRPC 7.1. cmt. 8.

Question 12

No payment of thing of value for recommending or ____ a lawyer

Answer 12

ENDORSING. lawyer is not generally permitted to give anything of value to a person for recommending the lawyer’s services. MRPC 7.2(b). A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities. Directory listings and group advertisements that list lawyers by practice area, without more, do not constitute impermissible recommendations. MRPC 7.2, cmt. 2.

Question 13

payment for client leads

Answer 13

3. A lawyer may also pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services). MRPC 7.2, cmt. 5.

Question 14

Payment for legal services plan, non profit referral, or QUALIFIED referral service

Answer 14

3. A lawyer may also pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services). MRPC 7.2, cmt. 5.

Question 15

When can a lawyer be part of group services plan that solicits memberships?

Answer 15

1) The plan must not be operated by an organization that is owned or directed by the lawyer.
2) In addition, the plan may not solicit persons who are known to need legal services in a particular matter, but can inform potential plan members that the plan represents a means of securing affordable legal services.
3) Also, a lawyer who provides legal services through the plan may not engage in solicitation of potential members on behalf of the plan, but may contact representatives of groups or organizations who are interested in establishing such a plan concerning the terms under which the lawyer is willing to participate in such a plan. MRPC 7.3(e), cmts. 6, 8.

Question 16

Lawyer’s Responsibilities to Assure (legal services program v. qualified referral program)

Answer 16

A lawyer who participates in such a legal service plan must act reasonably to assure that the plan sponsors are in compliance with the Model Rules with respect to advertising, communications, and solicitation and the lawyer’s professional obligations in general. MRPC 7.2, cmt. 7; 7.3, cmt. 8. Thus, advertising must not be false or misleading, as would be the case if the communications of a group legal services plan misled the public to think that the plan was a lawyer referral service sponsored by a state agency or bar association. MRPC 7.2, cmt. 7.

Question 17

solicitation v. ad

Answer 17

In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches. MRPC 7.3(a), cmt. 1.

Question 18

exceptions for live solicitation

Answer 18

i) A lawyer;
ii) A person who has a family, close personal, or prior business or professional relationship with the soliciting lawyer or law firm; or
iii) A person who routinely uses for business purposes the type of legal services offered by the lawyer.

MRPC 7.3(a).

a. Live person-to-person contact defined

“Live person-to-person contact” means in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection. Such person-to-person contact does not include chat rooms, text messages or other written communications that recipients may easily disregard. MRPC 7.3(a), cmt. 2.

Question 19

Pro Bono solicitation

Answer 19

Allowed if not for pecuniary gain

This prohibition only applies if a significant motive of the lawyer’s solicitation of the client is for the lawyer’s own pecuniary gain. If the lawyer is volunteering to work for the client pro bono, the prohibition on solicitation will not apply.

Question 20

If a friend says they’re not interested in your services but you keep bringing them up

Answer 20

(i) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or (ii) the solicitation involves coercion, duress, or harassment. MRPC 7.3(c).

Question 21

Can an oil company lawyer serve as director of environmental legal services non profit?

Answer 21

A lawyer may serve as a director, officer, or member of a legal services organization, apart from the law firm in which the lawyer practices, even if the organization serves persons having interests that are adverse to a client of the lawyer. MRPC 6.3.

Question 22

exception to climate change legal services to attorney who represents oil companies

Answer 22

The lawyer, however, is not permitted to knowingly participate in a decision or action of the organization if such participation would be incompatible with the lawyer’s obligations to a client under the Model Rules concerning conflicts of interest, or when the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer. MRPC 6.3.

Question 23

Conflicts in temporary legal services programs

Answer 23

A client-lawyer relationship is established in these programs, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation. Such programs normally operate under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. MRPC 6.5, cmt. 1. Under the Model Rules, a lawyer who, under the auspices of a program sponsored by a non-profit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter, is only subject to the Model Rules regarding conflicts of interest if the lawyer knows that the representation of the client involves a conflict of interest for the lawyer or for another lawyer associated with the lawyer in a law firm.

Question 24

consent required for temporary legal services programs

Answer 24

A lawyer who provides such short-term limited legal services must secure the client’s informed consent to the limited scope of the representation. MRPC 6.5, cmt. 2; see also MRPC 1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. MRPC 6.5, cmt. 2.

Question 25

Prohibition on making contributions to judges elections

Answer 25

A lawyer or law firm (or any political action committee or other entity owned or controlled by a lawyer or law firm) is not permitted to accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment. MRPC 7.6, cmt. 4. A political contribution is for the purpose of obtaining or being considered for a government legal engagement or appointment by a judge if, but for the desire to be considered for the legal engagement or appointment, the lawyer or law firm would not have made or solicited the contributions. MRPC 7.6, cmt. 5.

Question 26

“Political contribution”

Answer 26

The term “political contribution” means any gift, subscription, loan, advance, or deposit of anything of value made directly or indirectly to a candidate, incumbent, political party or campaign committee to influence or provide financial support for election to or retention in judicial or other government office. Political contributions in initiative and referendum elections are not included. The Model Rules exclude uncompensated services from the definition of “political contribution.” MRPC 7.6, cmt. 2.

Question 27

Exceptions to government legal engagement

Answer 27

Government legal engagement”

The term “government legal engagement” means any engagement to provide legal services that a public official has the direct or indirect power to award. The term does not, however, include: substantially uncompensated services; engagements or appointments made on the basis of experience, expertise, professional qualifications and cost following a request for proposal or other process that is free from influence based upon political contributions; and engagements or appointments made on a rotational basis from a list compiled without regard to political contributions.

Question 28

Exceptions to appointment by judge

Answer 28

“Appointment by a judge”

The term “appointment by a judge” denotes an appointment to a position such as referee, commissioner, special master, receiver, guardian, or other similar position that is made by a judge. The term does not, include: substantially uncompensated services; engagements or appointments made on the basis of experience, expertise, professional qualifications and cost following a request for proposal or other process that is free from influence based upon political contributions; and engagements or appointments made on a rotational basis from a list compiled without regard to political contributions. MRPC 7.6, cmt. 3.

Question 29

Judges and Lawyers

Answer 29

EXAM NOTE: When answering questions related to a judge’s behavior, remember that most judges are also lawyers, and are thus also bound by the professional ethics rules that apply to lawyers.

Question 30

Conviction necessary of judge?

Answer 30

A judge is required to comply with the law, including the CJC. CJC Rule 1.1. A conviction is not required for a judge to be considered to have violated this rule if a judge refuses to follow precedent or other mandatory authority. See, e.g., In re Hauge, 315 N.W.2d 524 (Mich. 1982).

Question 31

Judges or lawyers have to watch public statements that reduce confidence in judiciariy

Answer 31

Judges! Lawyers can make true statements that don’t prejudice their pending cases and meet requirements of disclosure.

Question 32

Four key areas to protect against appearance of impropriety

Answer 32

honesty, impartiality, temperament, or fitness to serve as a judge. CJC Rule 1.2, cmt. 5.

Question 33

Abuse of judicial office

Answer 33

A judge must not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so. CJC Rule 1.3. It is improper for a judge to use or attempt to use her position in order to gain personal advantage or deferential treatment of any kind. CJC Rule 1.3, cmt. 1.

Example: It would be improper for a judge to allude to her judicial status in order to attempt to gain favorable treatment in encounters with traffic officials.

Question 34

Personal letterhead exception

Answer 34

a. References

A judge is permitted to provide a reference or recommendation for an individual based upon the judge’s personal knowledge. While a judge must not use judicial letterhead to gain an advantage in conducting his personal business, the judge may use official letterhead for a reference for someone else if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to use the judge’s official position to exert pressure. CJC Rule 1.3, cmt. 2.

Question 35

If a judge writes for a publication, she has to make sure that…

Answer 35

If a judge writes or contributes to a publication of a for-profit entity, whether or not related to the law, the judge should not permit anyone associated with the publication to exploit the judge’s office in a manner that violates the CJC or other applicable law. A judge should retain sufficient control over advertising in any contract for publication of a judges writing to avoid such exploitation. CJC Rule 1.3, cmt. 4.

Question 36

Duties over vacation

Answer 36

The duties of judicial office, as prescribed by law, are required to take precedence over all of a judge’s personal and extrajudicial activities. CJC Rule 2.1.

Question 37

If judge finds something repugnant

Answer 37

A judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question. CJC Rule 2.2, cmt. 2.

Question 38

Helping pro se folks

Answer 38

It is not a violation of the rule requiring fairness and impartiality for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard. CJC Rule 2.2, cmt. 4.

Question 39

Can a judge make any conduct that seems he doesn’t like younger people from another state? (duty to self and staff)

Answer 39

A judge must avoid any conduct that may reasonably be perceived as prejudiced or biased.

Question 40

What if judge feels lawyer is being biased?

Answer 40

A judge must require lawyers appearing in proceedings before the court to refrain from manifesting bias or prejudice or engaging in harassment based on attributes including, but not limited to, race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socio-economic status, or political affiliation, against parties, witnesses, lawyers, or others. CJC Rule 2.3(C). Take off the death penalty tie!

Question 41

Examples of bias

Answer 41

A judge must require lawyers appearing in proceedings before the court to refrain from manifesting bias or prejudice or engaging in harassment based on attributes including, but not limited to, race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socio-economic status, or political affiliation, against parties, witnesses, lawyers, or others. CJC Rule 2.3(C).

Question 42

if an org says they love a judge and have a good relationship and feel she will be sympathetic

Answer 42

A judge must require lawyers appearing in proceedings before the court to refrain from manifesting bias or prejudice or engaging in harassment based on attributes including, but not limited to, race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socio-economic status, or political affiliation, against parties, witnesses, lawyers, or others. CJC Rule 2.3(C).

Question 43

Balancing panda’s thumb

Answer 43

n disposing of matters promptly and efficiently, a judge must show due regard for the rights of parties to be heard and try to have issues resolved without unnecessary cost or delay.

Question 44

What if a judge feels biased because of something she hears in settlement?

Answer 44

If there are instances when information obtained during settlement discussions could influence a judge’s decision making during trial, the judge should consider whether disqualification may be appropriate. CJC Rule 2.6, cmt. 3; see also CJC Rule 2.11(A)(1)

Question 45

Can judge reject case because of not enough time?

Answer 45

A judge must hear and decide matters assigned to the judge, except when disqualification is required by the CJC or other law. CJC Rule 2.7. A judge should not use disqualification to avoid cases that present difficult, controversial, or unpopular issues. CJC Rule 2.7, cmt. 1.

Question 46

Judge criticisms allowed only in….

Answer 46

A judge is not permitted to commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding. CJC Rule 2.8(C). Commending or criticizing jurors for a verdict may imply a judicial expectation in future cases and may impair a juror’s ability to be fair and impartial in a subsequent case. CJC Rule 2.8, cmt. 2.

Question 47

Judge can talk to jurors

Answer 47

after trial but not talk about case

Question 48

Strict prohibition on ex parte communications

even innocently intended ex parte communications are generally prohibited

Answer 48

1) Scheduling, administrative, or emergency reasons

If circumstances require it, ex parte communication is permissible for scheduling, administrative, or emergency purposes, which do not address substantive matters, but only if: (i) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond. CJC Rule 2.9(A)(1).

2) Disinterested legal expert

A judge is permitted to obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and gives them a reasonable opportunity to object and respond to the notice and to the advice received. CJC Rule 2.9(A)(2).

3) Consulting with court staff

A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out her adjudicative responsibilities, or with other judges, provided that the judge makes reasonable efforts to avoid receiving factual information that is not part of the record and does not abrogate the judge’s personal responsibility to decide the matter. CJC Rule 2.9(A)(3). A judge must avoid ex parte discussions of a case with judges who have previously been disqualified from hearing the matter and with judges who have appellate jurisdiction over the matter. CJC Rule 2.9, cmt. 5.

4) Settlement efforts

A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge. CJC Rule 2.9(A)(4).

5) When expressly authorized by law

A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so, such as when serving on a therapeutic or problem-solving court, a mental health court, or a drug court. CJC Rule 2.9(A)(5), cmt. 4. A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the judge’s compliance with the Code of Judicial Conduct. CJC Rule 2.9, cmt. 7.

c. Inadvertent receipt

If a judge inadvertently receives an unauthorized ex parte communication that bears on the substance of a matter, the judge is required to promptly notify the parties of the substance of the communication and provide the parties with an opportunity to respond. CJC Rule 2.9(B).

d. Prohibition on independent investigation of facts

A judge is not permitted to investigate facts in a matter independently, and must only consider the evidence presented and any facts that may properly be judicially noticed. CJC Rule 2.9(C). The prohibition against a judge investigating the facts in a matter extends to information available in all media, including electronic. CJC Rule 2.9, cmt. 6.

Question 49

Statements on pending cases

Answer 49

A judge is not permitted to make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending IN ANY COURT, or make any nonpublic statement that might substantially interfere with a fair trial or hearing. CJC Rule 2.10(A).

1) Official duties

A judge is permitted to make public statements in the course of official duties and may explain court procedures. CJC Rule 2.10(D).

2) Judge as litigant - A judge may comment on any proceeding in which the judge is a litigant in a personal (as opposed to official) capacity. CJC Rule 2.10(D). A judge may also comment on proceedings in which the judge represents a client as permitted by the Code of Judicial Conduct. CJC Rule 2.10, cmt. 2.

Question 50

Third party commenting for judge

Answer 50

c. Use of third party

When a judge may permissibly comment under the rules, the judge may do so personally or through a third party. CJC Rule 2.10(E).

Question 51

Must a judge disqualify herself if both parties consent to conflict?

Answer 51

A judge must disqualify (i.e., recuse) herself from a proceeding in which the judge’s “impartiality may reasonably be questioned.” CJC Rule 2.11. Disqualification is required even if a party has not sought to disqualify the judge. CJC Rule 2.11, cmt. 2.

d. Waiver

A judge who is subject to disqualification under the CJC, other than for bias or prejudice (see b.1) General bias, above), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, after such disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement must be incorporated into the record of the proceeding. CJC Rule 2.11(C).

Question 52

Exception to mandatory disqualification of judge

Answer 52

rule of necessity, but should disclose

Question 53

Grounds for disqualifying judge

Answer 53

b. Grounds for disqualification

Even if none of the specific grounds for disqualification enumerated below are met, a judge is still required to disqualify herself if the judge’s “impartiality may reasonably be questioned.” CJC Rule 2.11. In determining when a judge’s “impartiality may reasonably be questioned” apart from the enumerated grounds, a judge who has expressed a general opinion or formulated policy prior to becoming a judge that runs counter to a party’s position in the current proceeding is not required to disqualify herself. A judge is presumed to be able put aside general preferences and be impartial with regard to the case over which the judge is presiding. See, e.g., Laird v. Tatum, 409 U.S. 824 (1972) (Justice Rehnquist’s public statements, including testimony before Congress, regarding the constitutionality of governmental surveillance methods did not constitute grounds for his disqualification in hearing a case in which the constitutionality of those methods were challenged).

1) General bias

A judge must disqualify herself in any proceeding if there is reasonable ground to believe that the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding. CJC Rule 2.11(A)(1).

2) Relationship to party, witness, or lawyer

A judge must disqualify herself in a matter in which the judge knows that she or her spouse or domestic partner shares a third degree relationship or closer to a party, lawyer, material witness, or person who has more than a de minimis interest that could be affected by the proceedings. Disqualification is also required when the spouse or domestic partner of the related person is a party, lawyer, material witness, or interested party in the matter. CJC Rule 2.11(A)(2). A “third degree of relationship” includes a: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece. CJC, Terminology.

The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If the judge’s impartiality might reasonably be questioned, or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under paragraph, the judge must be disqualified.

3) Economic interest

A judge is disqualified when the judge knows that he, individually or as a fiduciary, or the judge’s spouse, domestic partner, parent, or child, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding. CJC Rule 2.11(A)(3), cmt. 6.

a) Definition of “economic interest”

“Economic interest” means ownership of more than a de minimis legal or equitable interest. Unless the judge participates in the management of such a legal or equitable interest, or the interest could be substantially affected by the outcome of a proceeding before a judge, it does not include: (i) an interest in the individual holdings within a mutual fund; (ii) an interest in securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge’s spouse, domestic partner, parent, or child serves as a director, an officer, an advisor, or other participant; (iii) a deposit in a financial institution or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or similar interests; or (iv) an interest in the issuer of government securities held by the judge. CJC, Terminology.

4) Contributors to judge’s campaign

A judge is disqualified when he knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within recent years made total contributions to the judge’s campaign in an amount that is greater than an amount set by the local jurisdiction in its ethics code. CJC Rule 2.11(A)(4).

5) Judge has made public statements committing the judge to rule in a particular way

A judge is disqualified if she, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy. CJC Rule 2.11(A)(5).

6) Prior relationship to matter

A judge is disqualified if she: (i) formerly served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association; (ii) served in governmental employment and participated personally and substantially as a lawyer or public official concerning the proceeding, or publicly expressed an opinion concerning the merits of the particular matter in controversy; (iii) was a material witness concerning the matter; or (iv) previously presided as a judge over the matter in another court. CJC Rule 2.11(A)(6).

Example: A judge has been assigned to try a criminal prosecution against a defendant. Twelve years earlier, the judge, while serving as a local prosecutor, initiated a criminal investigation of the same defendant. The investigation did not establish any basis for prosecution and none of the matters previously investigated are involved in or affect the present prosecution. Although the matters are different, the judge may not properly try the current case if her “impartiality may reasonably be questioned” with regard to the defendant because of the prior investigation.

Question 54

disclosure- permissable or mandatory?

Answer 54

c. Disclosure by the judge

A judge should disclose on the record information that he believes the parties or their lawyers might reasonably consider relevant to a possible disqualification motion, even when the judge believes that there is no basis for disqualification. CJC Rule 2.11, cmt. 5.

Question 55

Judge MUST disqualify with NO waiver if

Answer 55

1) General bias

A judge must disqualify herself in any proceeding if there is reasonable ground to believe that the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding. CJC Rule 2.11(A)(1).