USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 94-8042
IN RE
CARGILL, INC.,
Petitioner.
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ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MAINE
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Bernhardt K. Wruble, with whom William R. Sherman, Verner,
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Liipfert, Bernhard, McPherson and Hand, Peter J. DeTroy, III and
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Norman, Hanson & DeTroy were on brief, for petitioner.
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Joel C. Martin, with whom Michael K. Martin, Daniel W. Bates
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and Petruccelli & Martin were on brief, for plaintiffs.
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October 10, 1995
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SELYA, Circuit Judge. Petitioner, Cargill, Inc.
SELYA, Circuit Judge.
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(Cargill), seeks a writ of mandamus directing a judge of the
United States District Court for the District of Maine to
withdraw a decision previously issued and then to recuse himself
from further proceedings in the underlying cause.1 For the
reasons that follow, we decline to issue a prerogative writ.
I. BACKGROUND
I. BACKGROUND
The petition arises out of a civil action brought by
several former Cargill employees, represented by Daniel W. Bates
and Kenneth D. Keating of Petruccelli & Martin (P&M), an eight-
lawyer firm in Portland, Maine. The complaint invokes the
Robinson-Patman Act, 15 U.S.C. 13-13b (1988), and alleges in
substance that Cargill discharged the plaintiffs in retaliation
for their unwillingness to abide certain predatory pricing
practices. Cargill retained a Washington-based firm, Verner,
Liipfert, Bernhard, McPherson, and Hand (Verner, Liipfert), as
lead counsel, and a Portland firm, Pierce, Atwood, Scribner,
Allen, Smith, and Lancaster (Pierce, Atwood), as local counsel.
It then moved to dismiss on the basis that the plaintiffs
experienced no antitrust injury and, therefore, lacked standing
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1Petitioner premises his argument on the ground that the
judge's impartiality might reasonably be questioned. The
relevant statute provides:
Any justice, judge, or magistrate of the
United States shall disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned.
28 U.S.C. 455(a) (1988).
2
to maintain the action.
On December 19, 1993, while Cargill's motion was
pending before him, the district judge to whom the case had been
randomly assigned became embroiled in what he subsequently
described as a "minor controversy" relating to his efforts, and
those of his wife, to purchase a new home. The judge telephoned
Gerald Petruccelli, a principal partner in P&M, and sought his
advice anent the real estate dispute. Petruccelli agreed to the
proposed representation, telling the judge that he (Petruccelli)
knew of "no impediment" to the relationship.
On December 21, the two men met for about 50 minutes
and discussed the judge's real estate problem. A series of
telephone conversations followed over the course of the next
eight days. None lasted more than five minutes. Petruccelli
dealt directly with the lawyer who represented the other side in
the real estate matter and, on January 6, 1994, he resolved the
imbroglio to the judge's satisfaction. Petruccelli rendered a
bill, dated January 7, based on his standard hourly rate. The
judge paid the invoice within the week. It is undisputed that
Petruccelli never represented the judge in any other matter and
that the judge dealt only with Petruccelli (not with any other
P&M attorney).
The judge maintains that, at the time he engaged
counsel, he had "no conscious awareness that Mr. Petruccelli or
his firm were involved in this specific litigation then pending"
3
before him.2 Nonetheless, a few days after he had retained
Petruccelli, the judge asked his docket clerk to check his
calendar for pending cases in which P&M might have appeared. The
clerk brought two such cases to the judge's attention at about
the time that the attorney-client relationship ended. One of
these was the case against Cargill. Although Petruccelli himself
had played no role in P&M's representation of the plaintiffs, the
judge decided that he had best disclose his dealings with
Petruccelli.
On January 11, the clerk, acting at the judge's
direction, notified local counsel to attend a conference on the
following day. The disclosure conference (a transcript of which
comprises the appendix) proved to be brief. Attorneys Bates and
Keating appeared for the plaintiffs, and Attorneys O'Leary and
Einsiedler (both of Pierce, Atwood) appeared for Cargill. When
advised of the attorney-client relationship between Petruccelli
and the judge, both Bates and O'Leary quickly volunteered that
their respective clients had no objection to the judge's
continued participation in the case. The judge then advised the
lawyers that he was grappling with Cargill's motion to dismiss
which, in his view, "raise[d] some very interesting and difficult
questions." He forecast that he would hand down a decision
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2This declaration, and other declarations reflecting the
judge's state of mind, are extracted from the record of a
conference held in this case (reprinted in the appendix), from
the judge's notice to counsel (described infra), and from the
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order denying Cargill's recusal motion. For the most part,
petitioner has not challenged the factual accuracy of the judge's
statements.
4
"within a week or so."
Precisely one week thereafter, the judge issued a 39-
page rescript denying Cargill's motion to dismiss. While the
judge closed his chambers and released his staff on holiday leave
from December 24, 1993 through January 3, 1994, he admittedly
labored over the matter during some portion of the period when
Petruccelli represented him.
The filing of the opinion elicited no immediate
response. Several weeks later, however, Bernhardt Wruble, a
Verner, Liipfert partner, wrote a letter to the court asserting
that, because "a judge's contemporaneous representation by
opposing counsel is uniformly regarded as a basis for obligatory
disqualification," the judge should withdraw his order denying
the motion to dismiss, relieve himself of all responsibility for
the case, and reassign it to another jurist. Anticipating the
predictable reaction to this demand, Wruble suggested that
Pierce, Atwood's acquiescence was of no moment. Since local
counsel lacked prior notice of the purpose of the January 12
conference and, hence, had no opportunity to consult in advance
with either the client or lead counsel, Wruble wrote, the judge
had not afforded petitioner "adequate time for a considered
response" to the disclosure. Thus, there could be no "effective"
waiver.
The judge did no fewer than three things upon receiving
Wruble's communique. First, he postponed a scheduled status
conference in the case. Second, he directed any party who sought
5
his recusal to file a formal motion to that effect. Third, he
composed and served a statement, denominated as a notice to
counsel, in which he denied "that the Court required a decision
on waiver of any objection to the Court's continued participation
to be made at the conference." The judge explained that he meant
the disclosure conference to be informational in nature, that is,
"to advise counsel of the circumstances of Mr. Petruccelli's
representation and afford counsel an opportunity to confer with
clients and other counsel to decide whether they wanted to move
for recusal or request other action by the court." But, wrote
the judge, though he intended to give counsel a full month in
which to advise him of their clients' positions with respect to
the disclosed matter and, with this in mind, thought it
sensible to summon only local counsel to the disclosure
conference he did not do so because, immediately following his
revelation, both counsel, acting for their respective clients,
spontaneously disclaimed any objection to his continued
participation in the case.
On February 25, 1994, Cargill asked the district court
to certify for interlocutory appeal the January 19 order denying
the motion to dismiss. See 28 U.S.C. 1292(b) (1988).3
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Roughly two weeks later, Cargill moved for recusal, proffering
several affidavits. Cargill's motion, like Wruble's letter of
February 13, made it clear that Cargill's position rested on a
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3The district court eventually denied this motion.
Petitioner does not assign error to the denial, nor could it
rewardingly do so.
6
supposed appearance of impropriety, that is, the existence of
circumstances in which Cargill believed that the judge's
impartiality might reasonably be questioned. See 28 U.S.C.
___
455(a), quoted supra note 1. Cargill did not advance, then or
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now, any claim of actual bias. The plaintiffs opposed the
recusal motion. In their opposition, they made two principal
arguments: (1) Petruccelli's representation did not create an
appearance of impropriety within the meaning of 28 U.S.C.
455(a), and, in any event, (2) Cargill had waived any objection
to the judge's continuing role in the case. The plaintiffs
hinged the latter contention on 28 U.S.C. 455(e), a statute
that specifically permits a judge to accept the parties' waiver
of a section 455(a) appearance-of-impropriety ground for
disqualification as long as the waiver "is preceded by a full
disclosure on the record of the basis for disqualification."
On May 12, 1994, the district court denied the recusal
motion. Cargill subsequently filed its mandamus petition in this
court. We invited the plaintiffs to respond, set a briefing
schedule, and entertained oral argument.
II. THE NATURE OF MANDAMUS
II. THE NATURE OF MANDAMUS
Federal appellate courts are empowered to issue
prerogative writs that are "necessary or appropriate in aid of
their respective jurisdictions" under the All Writs Act, 28
U.S.C. 1651(a) (1988). Because such writs disrupt the
mechanics of the judicial system by accelerating appellate
intervention, prerogative writs foster piecemeal review and
7
disturb the historic relationship between trial and appellate
courts they should "be used stintingly and brought to bear only
in extraordinary situations." Doughty v. Underwriters at
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Lloyd's, London, 6 F.3d 856, 865 (1st Cir. 1993). Mandamus is
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such a writ. It is strong medicine, and should neither be
prescribed casually nor dispensed freely.
Consistent with these principles, the standards for
issuance of the writ are high. A petitioner seeking mandamus
must show both that there is a clear entitlement to the relief
requested, and that irreparable harm will likely occur if the
writ is withheld. See United States v. Horn, 29 F.3d 754, 769
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(1st Cir. 1994); Doughty, 6 F.3d at 866; In re Pearson, 990 F.2d
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653, 657 & n.4 (1st Cir. 1993). Sometimes, even these specific
showings are not enough to justify a court's use of its mandamus
power. In the final analysis, a writ of mandamus is an
exceptional remedy and "is to be granted only in the exercise of
sound discretion." Whitehouse v. Illinois Cent. R. Co., 349 U.S.
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366, 373 (1955). In this context, equity informs the court's
discretion. See Kerr v. United States Dist. Court, 426 U.S. 394,
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403 (1976); United States v. Helvering, 301 U.S. 540, 543 (1937);
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United States v. Dern, 289 U.S. 352, 359 (1933); Doughty, 6 F.3d
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at 866; United States v. Patterson, 882 F.2d 595, 600 (1st Cir.
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1989), cert. denied, 493 U.S. 1027 (1990); In re First Fed. Sav.
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& Loan Ass'n, 860 F.2d 135, 139-40 (4th Cir. 1988); Vishnevsky v.
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United States, 581 F.2d 1249, 1255 (7th Cir. 1978).
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We have held that, in an appropriate case, an issue of
8
judicial disqualification may present a sufficiently
extraordinary situation to justify the unsheathing of our
mandamus power. See In re Allied-Signal, Inc., 891 F.2d 967, 969
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(1st Cir. 1989), cert. denied, 495 U.S. 957 (1990); In re Cooper,
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821 F.2d 833, 834 (1st Cir. 1987); In re United States, 666 F.2d
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690, 694 (1st Cir. 1981); see also In re International Business
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Mach. Corp., 618 F.2d 923, 927 (2d Cir. 1980). However, the
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usual prerequisites to mandamus relief a showing of both clear
entitlement to the requested relief and irreparable harm without
it, accompanied by a favorable balance of the equities do not
vanish merely because judicial disqualification is the business
of the day. See, e.g., Allied-Signal, 891 F.2d at 969; Cooper,
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821 F.2d at 834; In re United States, 666 F.2d at 694. In other
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words, the mere fact that a petition for mandamus is directed at
securing the trial judge's removal does not ensure that the
higher court will entertain the petition.
III. DISCUSSION
III. DISCUSSION
After careful perscrutation of the record, we conclude
that petitioner's quest for mandamus should go unrequited.
Cargill has shown neither that it is clearly and indisputably
entitled to the writ nor that it faces an intolerable risk of
irreparable harm should it be forced to await appellate review in
the ordinary course. Moreover, Cargill's failure to take timely
action, after learning of the judge's disclosure and Maine
counsel's ensuing waiver of objection, tips the equitable balance
and argues persuasively against issuance of the writ.
9
A
A
We turn first to the matter of entitlement to the
relief requested. Assuming, arguendo, that the judge's
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relationship with Petruccelli created an appearance of
impropriety adequate to animate section 455(a) and we think
that it probably did4 Cargill's entitlement to an order of
disqualification remains questionable. Regardless of whether the
actions of its local counsel effected a fully valid waiver of the
disqualifying circumstance, the silence of Cargill and its lead
counsel after learning what had transpired may very well have
added the missing element, ratified the waiver, and given it
life. We elucidate below.
The relevant statute, 28 U.S.C. 455(e), plainly
contemplates that a party may waive an appearance-of-impropriety
ground for disqualification. The statute itself does not define
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4The disqualification requirement of section 455(a) is
triggered, despite the lack of any actual bias on the judge's
part, if a reasonable person, knowing all the circumstances,
would question the judge's impartiality. See Liljeberg v. Health
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Servs. Acquisition Corp., 486 U.S. 847, 861-62 (1988). Most
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observers would agree that a judge should not hear a case argued
by an attorney who, at the same time, is representing the judge
in a personal matter. See 13A Charles Wright & Arthur Miller,
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Federal Practice and Procedure 1349, at 614 (1984) (citing
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cases). Although the appearance of partiality is attenuated when
the lawyer appearing before the judge is a member of the same law
firm as the judge's personal counsel, but not the same
individual, many of the same cautionary factors are still in
play. See, e.g., 2 Administrative Office of the U.S. Courts,
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Guide to Judiciary Policies and Procedures V-32 (1995)
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(expressing the view that "where an attorney-client relationship
exists between the judge and the lawyer whose law firm appears in
the case, the judge should recuse absent remittal"). This
principle would seem to have particular force where, as here, the
law firm is small and the judge's lawyer is a name partner.
10
the form or prerequisites of such a waiver; it only imposes the
condition that the waiver be "preceded by a full disclosure on
the record of the basis for disqualification." 28 U.S.C.
455(e). The transcript of the January 12 conference leaves no
doubt that such a disclosure occurred. The judge laid out the
nature of his relationship with Petruccelli, citing book and
verse. This disclosure was then followed by an unequivocal
statement on the part of Cargill's counsel, unprompted by the
court, to the effect that Cargill did not object to the judge's
continued service in the case. Local counsel reported these
developments to lead counsel immediately after the conference
ended, and Verner, Liipfert in turn promptly informed the client.
Yet, for nearly a month thereafter, Cargill failed to express any
discomfiture with the waiver.
Although we leave the ultimate question open for
resolution on an end-of-case appeal, we think that local
counsel's unqualified assent, combined with Cargill's subsequent
silence for a substantial period of time, creates a sturdy
foundation on which the validity of the waiver might rest, and
that the resultant uncertainty undercuts Cargill's claim that it
is plainly entitled to the requested relief. After all, it is
common ground that civil litigants ordinarily are bound by their
attorneys' tactical judgments, see, e.g., Brody v. President &
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Fellows of Harvard Coll., 664 F.2d 10, 12 (1st Cir. 1981)
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(holding, on particular facts, that client would not be allowed
"to second guess his attorney's waiver"), cert. denied, 455 U.S.
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11
1027 (1982), and waivers based on silence are standard fare, see,
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e.g., United States v. Nobel, 696 F.2d 231, 237 (3d Cir. 1982)
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(finding waiver under 455(e) based on party's failure to make a
timely objection once the basis for disqualification was fully
disclosed), cert. denied, 462 U.S. 1118 (1983).
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However, Cargill asseverates that no valid waiver could
be given by its Maine counsel because the judge failed to follow
exactly the procedures governing waivers of disqualification
dictated by the Code of Conduct for United States Judges (CCUSJ),
adopted by the Judicial Conference of the United States following
promulgation by the American Bar Association. See CCUSJ,
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reprinted in 150 F.R.D. 307 (1992). Canon 3D of the CCUSJ allows
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a judge to hear a case if the parties and their lawyers agree to
the judge's continued service not only after disclosure of
certain bases for disqualification (including appearance of
impropriety), but also after having been afforded "an opportunity
to confer outside the presence of the judge[.]" Id. at 313.
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Here, what transpired at the disclosure conference met the first
requirement of Canon 3D, but not the second.
However, even if we assume arguendo that this
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noncompliance rendered the original waiver ineffective,5 counsel
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5Although we need not decide the point, we doubt that every
instance of noncompliance with the CCUSJ automatically justifies
post-hoc invalidation of a waiver that otherwise meets the test
of section 455(e). Certainly, the case law on the point is less
than transpicuously clear. See, e.g., Nobel, 696 F.2d at 237
___ ____ _____
(explaining that "it is sufficient under [section 455(e)] if the
judge provides full disclosure of his or her relationship at a
time early enough to form the basis of a timely motion at or
before trial and under circumstances which avoid any subtle
12
thereafter had ample opportunity for consultation with the
client, outside the presence of the judge, yet Cargill, knowing
of the stated waiver, did not alter its position. When the
judge's departure from the CCUSJ is weighed in the balance along
with his explanation and Cargill's knowing acquiescence in local
counsel's express waiver, the call seems to us to be quite close.
This closeness sets a chain reaction in motion. It leads us
first to conclude that the contested waiver may well be
enforceable, and constitutes, at the least, a potential stumbling
block on the road to recusal. The first conclusion leads
inexorably to a second conclusion: that petitioner has failed in
its endeavor to demonstrate that it is "clearly and indisputably"
entitled to the relief that it seeks.
To be sure, Cargill has attempted to explain away its
apparent ratification of the position taken by its local counsel
both factually (through a series of affidavits) and legally
(through its insistence on literal compliance with Canon 3D).
Its factual explanations and legal theories may or may not hold
water in the long run, but that is scarcely the point. We need
not and do not decide the merits of the waiver question at
this juncture. It suffices for present purposes merely to note
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coercion"); Haire v. Cook, 229 S.E.2d 436, 438-39 (Ga. 1976)
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(similar; construing Georgia law); Commonwealth v. Cagney, 329
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N.E.2d 778, 781 (Mass. 1975) (Goodman, J., concurring) (similar;
construing Massachusetts law). Notwithstanding the importance we
attach to the CCUSJ and the obvious desirability of assuring
judicial compliance with the canons, we think a strong argument
can be made that not all instances of noncompliance with the
CCUSJ are automatic disqualifiers.
13
that the issue is sufficiently clouded that petitioner's eventual
entitlement to the requested redress the district judge's
recusal is problematic.6 See Pearson, 990 F.2d at 656 & n.4;
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Cooper, 821 F.2d at 834.
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B
B
Petitioner suggests that recusal of a judge presents a
special circumstance which, even in the absence of clear
entitlement to the requested relief, warrants interlocutory
review by way of mandamus. This suggestion is not without
force.7 In cases in which parties have sought recusal based on
assertions of actual bias, we have stated that "the issue of
judicial disqualification presents an extraordinary situation
suitable for the exercise of our mandamus jurisdiction." In re
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United States, 666 F.2d at 694.
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6Because we find no clear and indisputable entitlement to
the requested relief, we need not consider whether Cargill
satisfied the second prong of the mandamus test by a showing of
irreparable harm. We note, however, that although there is
always some harm in litigating for nought, that harm repeatedly
has been held insufficient, in itself, to justify mandamus
relief. See, e.g., In re Bushkin Assocs., 864 F.2d 241, 243-44
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(1st Cir. 1989).
7In the same vein, however, we can envision cases in which,
despite a showing that ordinarily would amount to clear
entitlement, a litigant has acted so deplorably that the
petitioned court might choose to withhold discretionary relief.
See generally Precision Instrument Mfg. Co. v. Automotive
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Maintenance Mach. Co., 324 U.S. 806, 814 (1945) (explaining that
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the doctrine of unclean hands "closes the doors of a court of
equity to one tainted with inequitableness or bad faith relative
to the matter in which he seeks relief"); Texaco Puerto Rico,
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Inc. v. Department of Consumer Affairs, 60 F.3d 867, 880 (1st
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Cir. 1995) ("It is old hat that a court called upon to do equity
should always consider whether the petitioning party has acted in
bad faith or with unclean hands.").
14
Our rationale in these cases has been that "[p]ublic
confidence in the courts may require that such a question be
disposed of at the earliest possible opportunity." In re Union
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Leader Corp., 292 F.2d 381, 384 (1st Cir.), cert. denied, 368
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U.S. 927 (1961). However, we have cautioned that this philosophy
does not "commit us to entertaining every rejected affidavit of
prejudice," and we have made it clear that, even when a mandamus
petition seeks a judge's recusal based on an assertion of actual
bias, mandamus remains "a discretionary writ." Id. Because its
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origins are equitable in nature, the writ should issue to remedy
a wrong, not to promote one and it should not "be granted in
aid of those who do not come into court with clean hands."
United States v. Fisher, 222 U.S. 204, 209 (1911).
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In this case, principles of equity caution against
exercising discretion to reach out for the disqualification issue
here and now. To explain why, we must remind the reader that
mandamus is a potent weapon. Precisely because the writ packs a
considerable wallop, litigants are sometimes tempted to employ it
for its strategic value, regardless of the merits of their cause.
See Allied-Signal, 891 F.2d at 970; In re Drexel Burnham Lambert
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Inc., 861 F.2d 1307, 1312-16 (2d Cir. 1988), cert. denied, 490
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U.S. 1102 (1989). Ignoring this possibility when, as now, a
petition for mandamus seeks the disqualification of a judge
shortly after the judge decides a major point against the
petitioner would be to blink reality. In the real world, recusal
motions are sometimes driven more by litigation strategies than
15
by ethical concerns.
In such straitened circumstances, appellate tribunals
must be especially alert to the dangers of manipulation. Courts
can ill afford to permit mandamus to be used as a tactic to
jettison an impartial judge whose slant on a case, as evidenced
by his rulings, jeopardizes a party's chances for ultimate
success. See In re United Shoe Mach. Corp., 276 F.2d 77, 79 (1st
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Cir. 1960) ("We cannot permit a litigant to test the mind of the
trial judge like a boy testing the temperature of the water in
the pool with his toe, and if found to his liking, decides to
take a plunge.") (citation and internal quotation marks omitted);
cf. Reilly v. United States, 863 F.2d 149, 160 (1st Cir. 1988)
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(explaining that "when a trial judge announces a proposed course
of action which litigants believe to be erroneous, the parties
detrimentally affected must act expeditiously to call the error
to the judge's attention or to cure the defect, not lurk in the
bushes waiting to ask for another trial when their litigatory
milk curdles"). By like token, courts cannot afford to spawn a
public perception that lawyers and litigants will benefit by
undertaking such machinations.
This case runs up just such a red flag. While the
record does not compel a finding that petitioner and its lead
attorneys delayed any attempt to retract Maine counsel's waiver
as part of a plot to await the results of the judge's impending
decision, the chronology is suggestive. The scenario lends
itself to the following description: Cargill, armed with all the
16
relevant facts no later than January 14 and knowing that the
judge planned to decide the key motion in the case during the
following week,8 held its "appearance-of-impropriety" and
"invalid waiver" arguments in reserve, deferred any recusal
initiative, awaited the ruling on the motion to dismiss, found
that ruling to be greatly disappointing, and then pulled the
recusal option off the shelf in hopes of locating a more
sympathetic trier.
Of course, Verner, Liipfert tries strenuously to
explain away this chain of events. The firm's attorneys have
regaled us with descriptions of both their busy travel schedules
and the inclement weather that struck the nation's capitol during
January of 1994. But even if we were to take these excuses at
face value, they are simply not sufficient to justify the firm's
decision to sit silently by until the judge had showed his hand.
We believe it is self-evident that, once Cargill was
aware of the details surrounding Petruccelli's relationship with
the judge, it should at a bare minimum have told the court that
it wanted time to rethink its options and sought a delay in the
issuance of the court's opinion (which it knew to be imminent).
In all probability, it would have taken no more than a telephone
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8The various affidavits submitted by the petitioner to the
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district court establish that on Wednesday, January 12, the very
day that the disclosure conference was held, Pierce, Atwood
informed Verner, Liipfert of what had transpired, including the
judge's plan to issue his decision in approximately one week. A
corporate official was told of the situation no later than
Friday, January 14.
17
call or a facsimile transmission to place matters on hold.9
Thus, putting the most favorable face on the situation, it is
apparent that Cargill and its lead counsel neglected to act with
the immediacy that the circumstances obviously required.
Our need to exercise discretion also demands that we
take a related point into account. The case at hand is different
than our earlier precedents in several respects. First, it does
not involve a claim of actual bias, and, thus, it lacks one
important ingredient that in the past often prompted us to
undertake review of judicial disqualification orders at the
earliest practicable time. See Union Leader, 292 F.2d at 384.
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When issuing the writ is necessary to promote public confidence
in the courts by avoiding the unseemly spectacle of trial before
a biased judge, the need for immediate relief is manifest. See
___
In re United States, 666 F.2d at 694. These concerns are
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lessened where, as here, there is neither a trace nor a
suggestion of actual bias. Second, in this case, the party who
now claims to be aggrieved earlier had made an express waiver of
the stated ground for disqualification. This, too, changes the
calculus of public perception.
Last, but far from least, petitioner's course of
conduct whether conniving or merely slipshod influences our
assessment of the equities. Its handling of the matter places us
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9Cargill suggests that it might have offended the judge by
taking such action. We think its concerns are overblown:
lawyers run such a risk every time they seek a judge's recusal.
In any event, trial advocacy is no sport for the timorous.
18
between Scylla and Charybdis: if we do not entertain the
petition, we run a risk of seeming hesitant to inquire too deeply
into a possible abuse of judicial power; yet, if we entertain the
petition despite the appearance of sandbagging that Cargill has
created, we run a risk of eroding public confidence in the courts
by seeming to reward a litigant for its gamesmanship.
Given the fundamental nature of mandamus, declining
jurisdiction in the exercise of our informed discretion seems
preferable. Though it might be mere coincidence that the delay
in seeking to set aside the waiver worked to Cargill's advantage
by allowing it to see which way the wind was blowing before
deciding whether to urge recusal, the appearance of judge-
shopping is sufficiently pronounced that the equities counsel
restraint. See, e.g., Apple v. Jewish Hosp. & Medical Ctr., 829
___ ____ _____ ____________________________
F.2d 326, 334 (2d Cir. 1987) (noting that a "movant may not hold
back and wait, hedging its bets against the eventual outcome");
Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1986)
________ _____________
("Counsel, knowing the facts claimed to support a 455(a)
recusal for appearance of partiality may not lie in wait, raising
the recusal issue only after learning of the court's ruling on
the merits."), cert. denied, 481 U.S. 1016 (1987). We simply
_____ ______
cannot afford to nourish the impression that the courts, as an
institution, will bend over backward, overlook the obvious, and
countenance sharp tactics merely because they are directed at a
judge.
IV. CONCLUSION
IV. CONCLUSION
19
We need go no further. Petitioner has neither met the
conventional requirements for mandamus relief nor satisfied us
that, in the unique circumstances of this case, the equities
favor an affirmative exercise of our discretion. Consequently,
we deny the petition, without prejudice to Cargill's right to
raise its claim of error, if it so chooses, in an end-of-case
appeal.10
The petition for a writ of mandamus is denied.
The petition for a writ of mandamus is denied.
_____________________________________________
Appendix follows; dissenting opinion follows appendix
____________________
10Just as orders disqualifying or refusing to disqualify
counsel "can be reviewed as effectively on appeal of a final
judgment as on an interlocutory appeal," Richardson-Merrill, Inc.
________________________
v. Koller, 472 U.S. 424, 438 (1985), we see no reason why orders
______
pertaining to judicial disqualification cannot be effectively
reviewed at that time and in that manner. Nor is this scenario
oddly configured. An end-of-case appeal is a matter of right,
while mandamus is a matter of discretion. Courts have frequently
found that difference dispositive in analogous circumstances.
See, e.g., Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34
___ ____ ___________________ _____________
(1980) (per curiam); In re Bushkin Assocs., 864 F.2d 241, 244
______________________
(1st Cir. 1989). And, moreover, the fact that a lengthy trial
has intervened will not rob an appeal of its effectiveness. See,
___
e.g., Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1992)
____ _______ _____________
(vacating judgment on direct appeal following 35-day trial,
despite the circuit court's earlier denial of mandamus relief on
the same ground).
20
APPENDIX
APPENDIX
CHAMBERS CONFERENCE
CHAMBERS CONFERENCE
January 12, 1994
January 12, 1994
THE COURT: This is a very simple matter, I
THE COURT:
think. At least the reason for the
conference, so you don't have to get all
excited about it, is because Mr. Bates is
counsel in this matter and I have a
disclosure that I must make to counsel.
Approximately on December 19th, 1993, while
Mrs. Carter and I were in the course of
looking for a new house, I got in a
controversy with a party in a contract, a
purchase and sale, a minor controversy.
I, on that date, called Gerald Petruccelli,
Mr. Bates's partner, and I asked him if he
could give me advice and perhaps represent me
if it came to that.
He called me back on December 20th and said
that he had decided there was no impediment
to this representation of me. I met with him
on December 21 for about 45 to 50 minutes, we
21
discussed the matter. I told him that I
wanted a quick resolution - I should practice
what I preach.
I had telephone conferences with him about
the matter on December 22, 23, 28 and 29,
four or five minutes a piece. I understand
from him that he had telephone conferences
during that period of time with another
attorney and on January 6th, 1994, the matter
was resolved to my satisfaction. On the 7th,
Mr. Petruccelli rendered to me his bill and
on the 10th, that bill was paid in full.
The understanding at the conference that I
had with him on the 21st of December was that
I would pay the usual rate, usual fee
computed at the usual hourly rate for the
hours of devotion to the case that he would
charge to any stranger off the street. And I
was very serious about that, and I'm sure
that he was and I think the bill was entirely
satisfactory one to me, and I have no reason
to expect that it is to him. So we have no
kind of debt of any kind to each other out of
this very brief transaction.
22
I will tell you that I am morally certain in
my own mind that this series of events will
not in any way affect my ability in the way
I would find it to be properly decided, even
if the event had not occurred.
However, under the code, the canons of
judicial conduct, I felt arguably perhaps,
but I felt that it was proper, perhaps
required, but at least proper that I disclose
it and see if anyone has any objection in my
continuing to serve as the judge who will
ultimately decide this case.
MR BATES: Speaking for the plaintiff, we
MR BATES:
have absolutely no objection.
THE COURT: The record should also reflect
THE COURT:
that I never had any conversation with Mr.
Bates or anyone else of Mr. Petruccelli's
office.
MR. O'LEARY: Speaking for the defense, there
MR. O'LEARY:
is no objection.
23
THE COURT: I wanted you to know this.
THE COURT:
That's all I have. We have been for some
time - I have been in the course of dealing
with motions which raise some very
interesting and difficult questions and I
expect that within a week or so I will be in
a position to file a decision resolving that,
so the matter can go forward. I apologize
having held the matter up that long but these
are very tough things, not matters of first
impression, and I don't have a lot of
guidance by better judges than I.
MR. O'LEARY: Thank you.
MR. O'LEARY:
MR. BATES: We appreciate it.
MR. BATES:
THE COURT: Thank you very much. Another
THE COURT:
matter, the Graffam, matter, is scheduled for
trial, which is in your office on the other
side, you might just talk with them about it,
Bill Kayatta, apprise him of what has
happened and tell him that matter is also
scheduled for conference for the same purpose
so he can have a chance to reflect on it.
24
MR. BATES: I don't know that this needs to
MR. BATES:
be a part of the record. I know that Gerry
told me that he was going to call Bill
Kayatta, and did so.
THE COURT: Gerry did call and tell me that
THE COURT:
he had called someone to see if that would
create, if his representation would create
any problem and I didn't know what case it
was about or who the lawyer was. Ultimately
he called me back and told me that he had
found no impediment to his representation.
MR. O'LEARY: I appreciate the disclosure.
MR. O'LEARY:
[End of conference]
25
CAMPBELL, Senior Circuit Judge, (dissenting).
_______________________
While the question is exceedingly close, I regret that I
cannot agree with the court. The court's opinion would be
persuasive if written before the Judicial Conference of the
United States had adopted Canon 3D of the Code of Conduct for
___________________
United States Judges. But the court's opinion seems to me to
____________________
pay too little attention to the district court's failure to
have observed the Canon. Canon 3D provides,
A judge disqualified by the terms of
Canon 3C(1), except in the circumstances
specifically set out in subsections (a)
through (e) may, instead of withdrawing
from the proceeding, disclose on the
record the basis of disqualification. If
__
the parties and their lawyers after such
_________________________________________
disclosure and an opportunity to confer
_________________________________________
outside of the presence of the judge, all
____________________________________
agree in writing or on the record that
the judge should not be disqualified, and
the judge is then willing to participate,
the judge may participate in the
proceeding. The agreement shall be
incorporated in the record of the
proceeding. (emphasis added).
Canon 3D applies squarely to the situation here, in which a
judge has sought the parties' waiver of his mandatory
disqualification under 455(a). Congress expressly allows a
judge to accept a waiver of his disqualification under
455(a) (appearance of lack of impartiality) although not
under 455(b) (bias, personal knowledge of facts, financial
interest, etc.). See 28 U.S.C. 455(e). But while 455(e)
___
specifies no more than that such waiver be preceded "by a
full disclosure on the record of the basis for
-26-
26
disqualification," the judiciary is also subject to its own
Canon 3D which imposes additional conditions that were not
followed here. For that reason, I disagree that the parties
ever effectively waived the duty imposed by 455(a) that the
judge disqualify himself.
I make two points at the outset. First, as my
colleagues seem to concede, the judge's employment, as his
own lawyer, of the senior partner of the law firm
representing plaintiffs at the time he was considering a
major dispositive motion in plaintiffs' lawsuit, gave rise to
a reasonable question of his impartiality under 455(a).
While this was hardly a major indiscretion as such matters
go, it was the kind of conduct that gives rise to an
appearance of impropriety. Our court is in apparent
agreement as to the applicability of 455(a). However,
because the district court felt otherwise, and because the
issue deserves consideration, I have stated my reasons for
finding that 455(a) applies in an appendix to this dissent.
Section 455(a) required the judge to disqualify himself sua
sponte unless he received and accepted an appropriate waiver
from the parties.
A second point is that the proceedings at the
January 12 conference at which the judge candidly and
commendably disclosed the matter omitted to follow Canon
3D in basic ways. Canon 3D was developed to offset the
-27-
27
criticism that otherwise disqualified judges sometimes
secured the parties' agreement to allow them to continue in
cases by taking advantage of counsel's natural reluctance to
offend a judge before whom they frequently had to appear.
The original language of Canon 3D was drafted by a special
committee of the American Bar Association chaired by the
former chief justice of the Supreme Court of California,
Justice Traynor. Justice Traynor emphasized that, before a
valid waiver could occur, counsel must receive an opportunity
to confer with their clients outside the judge's presence.
The special committee also believed that the client as well
as counsel had to be involved in the waiver decision, as the
"parties are less likely than counsel to feel judicial
pressure [to remain in the case] . . . ." Broadening and
______________
Clarifying the Grounds for Judicial Disqualification:
_____________________________________________________________
Hearing on S. 1064 Before the Subcomm. of Courts, Civil
_____________________________________________________________
Liberties and the Administrative Justice of the House Comm.
_____________________________________________________________
on the Judiciary, 93d Cong., 2d Sess. (1974).
________________
The Canon serves in part to dispel counsel's sense
that by failing immediately to endorse the judge's continued
presence in the case, counsel might annoy the judge and
prejudice their cause. Under the Canon, counsel must be
extended an opportunity to consider the disqualification
issue outside the judge's presence, hence free from the fear
-28-
28
that any hesitancy to endorse the judge's continued presence
may be personally held against him.
In the present case, the judge never stated that
local counsel was free to withdraw and discuss
disqualification with his client and co-counsel. The judge
knew or should have known at this time that counsel had no
prior opportunity to discuss the issue with his client. The
judge had not disclosed the subject of the conference in
advance. Local counsel had made express inquiry the day
previous as to what the January 12 meeting would be about and
could learn nothing. Counsel, therefore, could not have
discussed the issue with his client and lead counsel prior to
_____
the meeting. When he came to the conference, local counsel
had to react on the spur of the moment, without knowing what
rights the judge was prepared to recognize, without knowing
whether the judge would recuse himself if counsel objected,
and without reassurance from the court that, without offense,
local counsel would be given a chance to consider this matter
with his client outside of the court's presence. The express
language of the Canon, conditioning a waiver upon an
opportunity to confer with the parties and counsel outside
the judge's presence, was not, in these circumstances, put
into play.
In hindsight, to be sure, local counsel could have
sought to save the situation by requesting time to talk to
-29-
29
lead counsel and his client a request the judge indicates
he would have granted. However, without the judge's advance
advice, counsel would not necessarily be expected to know of
his rights under Canon 3D, or indeed to know that Canon 3D
existed at all. Moreover, counsel may have felt that, where
the judge stated that the disclosed conduct would not affect
his ability to decide the case, and indicated no clear
willingness to withdraw, any hesitancy would simply be an
irritant. The duty to extend the benefits of this Canon to
the parties rests upon the judge. Here the judge did not
mention the provisions of the Canon nor indicate what rights
he would recognize.
In such circumstances, I think it plain that no
waiver occurred on January 12. In fact, the scenario at the
January 12 conference was exactly the one that Canon 3D was
intended to change. The drafters of Canon 3D thought that a
judge who simply announced disqualifying facts, indicated his
desire to continue to serve, and solicited and accepted oral
waivers from the attorneys present, might be exercising a
"velvet blackjack." Broadening and Clarifying the Grounds
_______________________________________
for Judicial Disqualification: Hearing on S. 1064 Before the
_____________________________________________________________
Subcomm. of Courts, Civil Liberties and the Administrative
_____________________________________________________________
Justice of the House Comm. on the Judiciary, 93d Cong., 2d
_____________________________________________
Sess. (1974). Canon 3D, by requiring discussion with the
clients outside the judge's presence and, by requiring the
-30-
30
clients' acquiescence as well as that of counsel, sought to
ease the pressures to acquiesce that inhered in the "old"
process.
It is true that the Code of Judicial Conduct is not
statutory, nor does the Judicial Conference of the United
States which adopted the Code hold a specific statutory grant
of authority to enact binding ethical rules. However, the
Conference is itself a creature of statute. See 28 U.S.C.
___
331. Chaired by the Chief Justice, the Conference is the one
body recognized as speaking administratively for the entire
federal judiciary. Its adoption of Canon 3D, I suggest,
gives the Canon great persuasive weight. Additionally, the
provisions of Canon 3D emanated from a model ethical code
drafted by the American Bar Association and adopted in one or
another version, by many states. It is important, I think,
to our institutional credibility, that the procedures set out
in Canon 3D of the Code of Conduct for United States Judges
be taken seriously.
As, in my view, no waiver occurred by force of
local counsel's acquiescence on January 12, the question
arises whether some kind of de facto waiver or equitable bar
should be implied from Cargill's failure to object promptly
to the judge's continued participation once its local counsel
had told it of the judge's disclosures. Cargill also learned
at the January 12 conference that the judge was about to hand
-31-
31
down his ruling. If Cargill did not want the judge to
participate, my colleagues believe that Cargill was required
to protest then and there, rather than strategically waiting
to see how the wind blew, objecting as it did only
after the judge had ruled against it.
This is a close question. There is certainly
weight to my colleagues' view that Cargill may be misusing
the Canon now for purely strategic purposes. It can be
implied, moreover, that the district court having fully
revealed the conduct in question, sincerely, if incorrectly
under the Canon, relied on local counsel's approval, not
withdrawn, as sanctioning the court's continuance in the
case. But while reasonable minds may differ, I believe that
the court's failure to follow Canon 3D's waiver procedures so
clouded future events as to make it inappropriate to read too
much into Cargill's failure to challenge the judge's
continued participation during the week prior to the court's
ruling on the motion. A primary purpose of the procedure
outlined in the Canon is to remove, or at least to lessen,
the pressure of the judge's feared resentment if a waiver is
not quickly volunteered. This lessening of pressure would
not have happened here. The Canon anticipates that the court
will reassure attorneys in advance of their right to speak to
their clients out of the judge's presence. Also that the
judge will inform counsel that he will withdraw if waiver is
-32-
32
not granted, or, at least, of his intentions in this regard.
In the present case, by the time Cargill learned of the
judge's stated grounds for disqualification, the judge had
already made the decision not to recuse himself. At that
point, Cargill had no assurance that its repudiation of local
counsel's acquiescence would be honored. It had to decide
whether to risk angering the judge futilely at a time when
the matter seemed to have been settled and a decision on its
motion was imminent.
To be sure, Cargill's local counsel could have
acted differently. It is often true and properly so
that a client is bound by positions taken or not taken by his
attorney. Canon 3D makes it clear, however, that attorney
acquiescence, standing alone, is not enough to constitute a
waiver. Local counsel's acquiescence followed by Cargill's
reluctance to object cannot be disassociated from the judge's
initial failure to implement the Canon provision a
provision that the judge himself is responsible for
explaining and implementing in the first instance. Canon 3D,
setting out the requirements for a judge to secure a valid
waiver of his own disqualification, is not mere grist for the
adversarial mill. Rather, it is a rule of conduct the judge
is supposed to know and apply. While Cargill's counsel might
have saved the situation, responsibility for the error should
not too easily be shifted to the shoulders of one of the
-33-
33
parties. Given the altered situation confronting Cargill
once the die had been cast on January 12, I am not disposed
to find that Cargill ratified local counsel's earlier
acquiescence simply by taking no action before the court's
decision.
Cargill, to be sure, had to act diligently if it
wished to challenge the judge. Delay would soon become
unfair to Cargill's opponent, who would continue to invest
money and effort into the lawsuit in reliance upon the
continued service of the judge in question. But Cargill's
raising of an objection within a month after the decision
seems to me to be acceptable given that the initial error was
that of the judge, not Cargill. In so saying, I recognize
the validity of my colleagues' concern that Cargill may well
be acting strategically, and that courts are, and should be,
reluctant to allow two bites at the apple. But against this
must be weighed the nonobservance of Canon 3D.
As 455(a) applied and, in my view, no sufficient
waiver occurred under 455(e), the question of remedy
arises. In Liljeberg v. Health Serv. Acquisition Corp., 486
_________ ______________________________
U.S. 847, 862-64 (1988), the Supreme Court wrote:
A conclusion that a [ 455(a)] violation
occurred does not, however, end our
inquiry. As in other areas of the law,
there is surely room for harmless error
committed by busy judges who
inadvertently overlook a disqualifying
circumstance. There need not be a
draconian remedy for every violation of
-34-
34
455(a) . . . . We conclude that in
determining whether a judgment should be
vacated for a violation of 455(a), it
is appropriate to consider the risk of
injustice to the parties in the
particular case, the risk that the denial
of relief will produce injustice in other
cases, and the risk of undermining the
public's confidence in the judicial
process.
See also In re Allied-Signal, Inc., 891 F.2d 974, 975-76 (1st
________ _________________________
Cir. 1989).
For a new judge to be brought in at this juncture
would not, in my view, be a draconian remedy, nor a license
for unwarranted attacks on courts. To be sure, the question
that arose here the judge's brief use of the senior law
partner in the same law firm retained by plaintiffs was
not monumental and quite likely would have been waived by
Cargill in a proper proceeding. Moreover, evidencing his
integrity, the judge quickly called a conference and revealed
all the relevant facts. Nonetheless, the judge's retention
of Mr. Petruccelli at the time of the pending lawsuit did
create the appearance of lack of impartiality; and section
455(a) required the judge to step aside unless he received
proper waivers from the parties. As this did not occur here,
and as the case is still at an early stage, I think it would
be reasonable for another judge to enter the case. While
this imposes some small price on the court and plaintiffs, it
is justified as demonstrating the need to observe the Canon.
-35-
35
I would add that, had mandamus requiring a new
judge been granted, it would have been open to this court to
let stand the former judge's ruling on Cargill's dismissal
motion. Whether to do this would have been a close question,
but, however that issue were resolved, the bringing in of a
new judge would have emphasized that Canon 3D procedures are
not precatory.
I do not take too seriously my colleagues'
suggestion that this issue may be revisited several years
down the road on direct appeal from any final judgment
rendered in plaintiffs' favor. By then there would be
overwhelming equities in plaintiffs' favor not to require
___
them to undergo the expense and burden of retrying the case
before a different judge. The Supreme Court has stated "that
in determining whether a judgment should be vacated for a
violation of 455(a), it is appropriate to consider the risk
of injustice to the parties." Liljeberg, 486 U.S. at 864.
_________
Mandamus has been properly recognized as the usual and proper
remedy for raising and resolving promptly a question of
judicial disqualification such as this. See, e.g., Alexander
___ ____ _________
v. Primerica Holdings, Inc., 10 F.3d 155 163 (3d Cir. 1993);
________________________
In re United States, 666 F.2d 690, 694 (1st Cir. 1981). I
____________________
would expect that the court's decision, which has been
rendered after the most careful consideration by all members
of the panel, will end the matter.
-36-
36
Appendix to Judge Campbell's Dissent
Appendix to Judge Campbell's Dissent
For the following reasons, I conclude that the
judge's relationship with Mr. Petruccelli required him to
recuse himself under 28 U.S.C. 455(a) absent receipt of the
parties' waiver. That statute provides that a judge "shall
_____
disqualify himself in any proceeding in which his
impartiality might reasonably be questioned." (emphasis
_________________
supplied). The legislative history indicates that section
455(a) was meant to lessen the traditional "duty to sit,"
and, as the Supreme Court has indicated, to require
avoidance of even the appearance of partiality. Liljeberg v.
_________
Health Serv. Acquisition Corp., 486 U.S. 847, 860-61 (1988).
______________________________
Recusal may be required even in the absence of actual
partiality if there is an objectively reasonable basis for
doubting the judge's impartiality. Id.; see Code of Judicial
___ ___ ________________
Conduct Canon 2 (1973) ("[A] judge should avoid impropriety
_______
and the appearance of impropriety in all his activities.")
__________________
(emphasis supplied). The Committee on the Codes and Conduct
of the Judicial Conference of the United States stated that
where an attorney-client relationship
exists between the judge and the lawyer
whose law firm appears in the case, the
judge should recuse absent remittal.
2 Administrative Office of the U.S. Courts, Guide to
_________
Judiciary Policies and Procedures V-25 (1993).
_________________________________
-37-
37
The proper standard for ascertaining whether a
judge's impartiality might reasonably be questioned under
455(a) is whether the charge of lack of impartiality is
grounded on facts that would create a reasonable doubt, not
in the mind of the judge, or even necessarily that of the
litigant, but rather in the mind of the reasonable person.
See United States v. Cowden, 545 F.2d 257, 265 (1st Cir.
___ _____________ ______
1976), cert. denied, 430 U.S. 909 (1977). Section 455(a)
____________
requires a contextual, case-by-case analysis. It does not
imply a bright-line rule disqualifying any judge who ever has
personal dealings with an attorney whose firm represents
litigants before the same judge. The existing case law on
the subject of judge-attorney dealings rests on exceedingly
fact-specific judgments, with different outcomes in different
situations.11
____________________
11. See In re Placid Oil Co., 802 F.2d 783 (5th Cir. 1986);
___ _____________________
Potashnick v. Port City Constr. Co., 609 F.2d 1101 (5th
__________ _______________________
Cir.), cert. denied, 449 U.S. 820 (1980); Texaco v. Chandler,
____________ ______ ________
354 F.2d 655 (10th Cir. 1965), cert. denied, 383 U.S. 936
____________
(1966); Rapp v. Van Dusen, 350 F.2d 806 (3d Cir. 1965); In re
____ _________ _____
Snowshoe Co., 137 B.R. 619 (D. W. Va. 1991), aff'd mem., 953
____________ __________
F.2d 639 (4th Cir. 1992); Carbana v. Cruz, 595 F. Supp. 585
_______ ____
(D.P.R. 1984), aff'd mem., 767 F.2d 905 (1st Cir. 1985);
___________
Miller Indus., Inc. v. Caterpillar Tractor Co., 516 F. Supp.
___________________ ________________________
84 (D. Ala. 1980); Smith v. Sikorsky Aircraft, 420 F. Supp.
_____ _________________
661 (C.D. Cal. 1976). See also Varela v. Jones, 746 F.2d
_________ ______ _____
1413 (10th Cir. 1984); S.J. Grove & Sons Co. v. I.B.T., 581
______________________ ______
F.2d 1241 (7th Cir. 1978); United States v. Equifax, Inc.,
_____________ _____________
557 F.2d 456 (5th Cir. 1977), cert. denied, 434 U.S. 1035
____________
(1978); In re Georgetown Park Apt., 143 B.R. 557 (Bankr. 9th
__________________________
Cir. 1992). Cf. In re Allied-Signal, Inc., 891 F.2d 974 (1st
___ _________________________
Cir. 1989).
-38-
38
Having said this, certain principles seem clear. A
judge would ordinarily be disqualified to sit by 455(a) if
an attorney in the case before him or her were, at the same
time, actively representing the judge in a personal matter.
See 13A Charles Wright, Arthur Miller & Edward Cooper,
___
Federal Practice and Procedure 3549 at 614 (1984); cf.
________________________________ ___
Potashnick, 609 F.2d at 1110-12; Texaco, 354 F.2d at 657.
__________ ______
And while the situation is more attenuated where the judge is
being personally represented not by the same attorney but by
someone else in the attorney's firm, the latter situation is
at least cause for concern, as there can be no doubt that, in
many factual situations, such overlap can create the
appearance of partiality calling for withdrawal under
455(a). The members of the Judicial Conference Committee
advising judges as to the proper interpretation of the Code
of Conduct have said as much. See 2 Guide to Judiciary
___ ___________________
Policies and Procedures, supra, at V-25.
_______________________ _____
Weighing all the factors in the present case in
which I entertain no doubt whatsoever as to the judge's
personal integrity I nonetheless believe that a
reasonable person viewing all the circumstances might have
questioned the impartiality of the judge. The judge's ruling
to the contrary was, I believe, an abuse of discretion. See
___
In re United States, 666 F.2d 690, 697 (1st Cir. 1981) (a
_____________________
-39-
39
federal judge's decision on whether to recuse himself or
herself is committed to that judge's sound discretion).
The judge received personal legal services from the
senior partner of Petruccelli & Martin, a small eight-member
firm, close to the time the court ruled upon a dismissal
motion that, had it been resolved for Cargill, would have put
Petruccelli & Martin's client out of court. The problem is
not simply that by personally retaining Mr. Petruccelli, the
judge indicated he had high regard for the latter's
professional abilities. Judges may and often do, with
propriety, indicate respect for an attorney's competence.
Here, however, by retaining the senior partner of this small
firm for personal legal advice while having under advisement
a dispositive motion in a case being handled by other members
of the firm, the court gave the appearance that he may have
had a particular affinity for that firm and perhaps some
close and special relationship. Other attorneys in the same
case could reasonably have been offended by what might have
appeared, from the outside, to have been a confidential
relationship between the judge and Mr. Petruccelli at that
particular time. Also, even after the ending of the judge's
own attorney-client relationship, an outside observer might
wonder if, in some manner, consciously or unconsciously, the
judge's appreciation for a job well done by plaintiff's law
firm might possibly affect his handling of the pending case.
-40-
40
The judge's brief attorney-client relationship with
Mr. Petruccelli ended, it is true, before the judge's
decision in the case against Cargill. The judge, however,
had worked on Cargill's motion during the period of that
relationship. Moreover, the relationship ended only ten days
before the decision a period too short to insulate the
two events from one another. Any appearance of partiality
that existed prior to the time the representation ceased
cannot be meaningfully separated from the court's decision of
January 19.
It is important to emphasize that 28 U.S.C.
455(a) is concerned with the appearance of impartiality.
__________
Liljeberg, 486 U.S. at 860-61. Disqualification for actual
_________ ______
personal bias or prejudice is separately covered by
455(b)(1). The judge seems to have overlooked the appearance
aspect of the statute when he emphasized at the January 12
conference his moral certainty that his handling of the case
would not be affected by the relationship with Mr.
Petruccelli. The question was not just whether he was biased
or prejudiced, but whether his impartiality might reasonably
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be questioned, a related but different matter.12 According
to the House Report accompanying amendments to 455,
Subsection (a) of the amended section 455
contains the general, or catch-all, [of
Canon 3C] that a judge shall disqualify
himself in any proceeding in which 'his
impartiality' might reasonably be
questioned. This sets up an objective
standard, rather than the subjective
standard set forth in the existing
statute . . . . This general standard is
designed to promote public confidence in
the impartiality of the judicial process
by saying, in effect, if there is a
reasonable factual basis for doubting the
judge's impartiality, he should
disqualify himself and let another judge
preside over the case. The language also
has the effect of removing the so-called
'duty to sit' which has become a gloss on
the existing statute . . . .
H. Rep. No. 93-1453, 93d Cong., 2d Sess. (1974), reprinted in
____________
1974 U.S.C.C.A.N. 6351.
To be sure, the drafters of the statute were also
concerned, as are my colleagues here, that the statute not be
____________________
12. Section 455 was completely rewritten by Congress in 1974
so as to conform with the then-new Code of Judicial Conduct
_________________________
which the Judicial Conference of the United States had
adopted in 1973 as being applicable to all federal judges.
Section 455 was amended so as nearly to duplicate the Code's
Canon 3C, with the intention that federal judges "would no
longer be subject to dual [i.e.] Code and statutory standards
governing their qualification to sit in a particular
proceeding." H. Rep. No. 93-1453, 93d Cong., 2d Sess.
(1974), reprinted in 1974 U.S.C.C.A.N. 6351. The Code of
____________ _______
Judicial Conduct was drafted under sponsorship of the
__________________
American Bar Association by a committee chaired by former
California Chief Justice Roger J. Traynor. The other
committee members included Justice Potter Stewart of the U.S.
Supreme Court, Judge Irving R. Kaufman of the U.S. Court of
Appeals for the Second Circuit, and Judge Edward T. Gignoux
of the U.S. District Court for the District of Maine.
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used by litigants for purely strategic purposes. The House
Report cautions that the new test should not be used by
judges to avoid sitting in difficult or controversial cases.
Disqualification for lack of impartiality must always have "a
reasonable basis." Id. (emphasis in original).
__________ ___
Yet the question at issue is, objectively, whether
___________
the circumstances reasonably gave rise to a question of the
judge's impartiality. If so, the judge shall disqualify
_____
himself. An express purpose of the 1974 rewrite of 455 was
to abandon the subjective standard of the older statute,
which had depended largely on the judge's personal view of
whether he or she could behave impartially. Unfortunately,
the circumstances here created a situation where a reasonable
observer could entertain doubts as to the judge's
impartiality. The judge himself obviously had concerns about
the appearance of what had happened, leading him to call the
conference of January 12 for the purpose of disclosing what
had transpired. That a question of the judge's
impartiality under 455(a) existed does not mean that the
judge committed a serious impropriety. The judge explained
that he did not immediately focus on the fact that Mr.
Petruccelli's firm, partners and associates were involved in
the case pending before him. Once aware, the judge
commendably disclosed the relationship. This action speaks
loudly as to the judge's personal integrity. The fact
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remains, however, that a reasonable observer could
objectively question the judge's impartiality in the
particular circumstances. The judge was, therefore, required
to remove himself unless he had received the parties' waiver.
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