Bad Judges? Ethics Questions in Seeking Judicial Disqualification
In this ethics program, we explore how to deal with biased and bad judges within the governing ethics standards. We address the fundamental ethics issues involved in challenging a judge for disqualification, as well as the ethics traps for lawyers who make the charge too easily. We use as a case example an explosive, interesting historical case from the Cold War — the serial deportation trials of Harry Bridges. We also use famous current cases to explore the bias issues, as well as improper race-based conduct by judges and lawyers. Along the way, we offer useful tips to protect and advise clients so you tread carefully and safely.
Peter Afrasiabi: Welcome. I'm Peter Afrasiabi. I'm an attorney with the law firm of One LLP in Newport Beach, California. Today's program is Bad Judges: Ethics Questions in Seeking Judicial Disqualification.
Perhaps the most defining aspect of American law is the existence of neutral and attached impartial judges, or so we hope. Fundamentally, where a democratic republic like ours requires the consent of the governed, we have to have public confidence in the judicial system. It's critical. And so it's not enough that judges are impartial in fact. They must be understood and perceived by the public to be impartial at all times, to be understood by the public being the entire body politic, and the lawyering, the bar, and our clients.
But what if they're not? And how do you know if they're not? How do you challenge them? What are the tripwires that you may cross if you make a foolish challenge? Well, today you're going to explore it. This MCLE is focused primarily on federal law, federal statutes, and we will be using the California rules of professional responsibility. Other states vary a little bit, but they're very, very similar, actually, so California is a good template. We'll also touch on the EBA's modern rules. And we're going to discuss the ethics involved in bringing disqualification motions against judges, and the standards by which the motions can and should be brought and should not be brought, and the governing patchwork regime of ethics standards and legal standards that apply to regulate attorney conduct.
We are going to principally look at these questions today by assessing these standards in conjunction with what is really one of the most famous and brutal civil litigation disputes ever. It's the serial deportation trials of Harry Bridges. This is a subject that I have written on extensively, I've written a book on. The book is one that develops and addresses the over 20 years of litigation that Harry Bridges spent during the Cold War, when the government put them in serial deportation trials in San Francisco, California, trying to deport him on the grounds that he was an alleged member of the Communist Party.
The third trial was in San Francisco federal court, and at the time it was the longest and most publicized federal court trial ever held in the Northern District of California. And it triggered massive ethics and disqualification issues that are really fascinating. They serve as a touchstone and a Petri dish for us to explore the questions. Now, as we travel through time from Harry Bridges day to our day, we'll touch on various other cases and the standards that govern attorney conduct today. And of course, we'll discuss current cases.
As we go to the next slide here, you can see the issues. This is what we are focused on as a big-picture set of ethics questions. We're looking at the dilemma for practitioners. If you find yourself in a possible disqualification standard, what standards could you be judged by for even asserting disqualification? And principally what we're concerned about here from the ethics viewpoint for you as a practitioner is that line between being an out-of-control lawyer, one who's tripped the wires, and the line between that and being a legitimate zealous advocate advocating for your client in the best way possible.
The dilemma is also one here for the judge. Who judges the judge on a disqualification motion? And at root, we have have a dilemma for all. When would a reasonable observer fairly consider the judge's impartiality to be in question? These are the major ethics that we thus discuss and confront in our program today.
So let's dive into all of this first by walking through the law, the governing rules. We're going to look at all of them in the applied setting of that most contentious case of the mid-20th century that I talked about, the Harry Bridges case. Let's get going on the rules, though.
And so you see here what we've called the potpourri of governing ethics rules and standards. The fundamental rules come from the federal code, Federal Statute 28, U.S.C., sections 144 and 455, which govern disqualification. We're going to look at the California rules of professional conduct and the code of conduct for US judges.
And the major rule is built around this question. When would a reasonable person challenge the judge's impartiality? That's the fundamental litmus test you want to keep in mind. We're going to go through the statutes and the rules in detail, but in some sense, all roads lead to Rome, and that's our Rome. When would a reasonable person challenge the judge's impartiality?
Now, attorney conduct, as I mentioned earlier, it's not subject instead of national standard. It's really a patchwork of regimes. We have state bar rules. We have ABA model rules of professional responsibility, the ABA model code of professional responsibility, all of which sometimes get cited by courts, sometimes do not get cited by courts. We have local rules in the different federal courts. We also have the federal court's inherent power to regulate attorney conduct in the bar. And that inherent power gives the court a wide swathe of power to issue sanctions for improper conduct, inappropriate behavior, which can be triggered for wrongly challenging a judge's ethics when you don't have a basis to do it.
Now, what's interesting here is to pause and think about the fact that federal courts have a very coherent set of national standards for all other areas of substantive law. We have the federal rules of evidence, the federal rules of civil procedure, the federal rules of criminal procedure, and they are standardized and uniform. And you know what hearsay is and what hearsay is not. If you're in the Ninth Circuit, the Second Circuit, in Texas, or in Maine, it's all the same in terms of the federal rules. There are barnacles, obviously, of differences in terms of some applications in different jurisdictions, but the root standards are identical.
And what's interesting here is when it comes to the ethics of lawyer behavior across the nation, we don't have the federal rules of ethics for lawyers or the federal ethics canons for lawyers. So that's why we go to this patchwork of legal regimes.
And so it is what you can see in this next slide, really a cacophony of noise. You see here a slide, which this chart shows some really interesting data that you can just look at to recognize, at some level, what is the confusion in terms of what rules apply. And this is very important for you as a practitioner to know, because, unlike the federal rules of evidence, where you know the standard, here you have to be aware that there are multiple possible standards by which you could be judged.
What we see here is a chart put together by a law review in terms of federal court citation to model rules of professional conduct and the state rules of professional conduct, and it covers a near quarter-century period. And you can just see the huge difference in terms of court opinions citing to model rules versus bar rules. And you can see the shifting nature of what is cited to over time. And that obviously has a big impact on you, so it's another reason to keep in mind that when you want to get an answer to the ethics questions, you have to look into multiple sources in multiple places to know that you're safe.
Let's go to the next slide and unpackage the statute in more detail. We're going to start with 28 U.S.C. 455. At root, the question is that disqualification may exist where impartiality might reasonably be questioned. The major rule that distills from this statute is that disqualification for the appearance of partiality is viewed from the perspective of a reasonable, non-judge, thoughtful person. Now, keep in mind, a reasonable, thoughtful person is not what a reasonable judge may think is appropriate, because that is obviously a very different lens. So we take a reasonable, non-judge, thoughtful person standard precisely because of that critical role that these rules play in terms of American democracy and our republic in terms of maintaining the consent of the governed, that there is genuinely perceived impartiality in the law. So that serves that public perception policy idea.
And we also have to have outward facts that can be construed as bias. That is necessary because we do not have a subjective heart and mind inquiry. You don't get to say that, "I believe the judge is biased in his heart and mind, even though he's never said or done anything to show it, and I want to hereby challenge the judge." There's no means to do that and gain a deposition into the heart and mind of the judge. And so the rule to trigger stems from outward facts that have to be perceived or understood as evidencing bias.
And you see here it also requires that it has to stem from some extrajudicial source, unless you really have exceptional record evidence of bias from the case. What this means is that you don't get to charge bias or claim the existence of bias in making this kind of a challenge to a judge, for the judge himself or herself being unethical, based upon the fact that you don't like the rulings in the case, or your summary judgment motion was denied, or you were denied discovery. It really requires some extrajudicial source that you can pinpoint and point to to unpackage and explain why there's bias in a given case. Now, of course you can have cases, and we'll see some, where there's exceptional record evidence of bias.
Close questions. We are on the side of disqualification, precisely because of that systemic public policy, that we talked about earlier. And so the ethics dilemma for you as a practitioner is whether there's sufficient cause to levy the charge, and fundamentally, for a practice pointer perspective, if you're in litigation, what is the blowback that could come to you? You have a potential boomerang that you're throwing out, and you may think it's a hand grenade you're throwing out, and you're going to blow up the judge and get a new judge, and you think you're thrilled. But it may turn out that that hand grenade you toss, not really a hand grenade, it's a boomerang, and it may come back and really damage your client, and fundamentally you, which you don't want to do either. And so it's that balancing of the client interest and the ethical obligations to the client that's so important.
The next slide you see, it's 28 U.S.C. 144, and it's a very, very similar standard. It's the same objective standard. Here, you swear out an affidavit that the judge has a personal bias or prejudice against either you, the affiant, the lawyer, or in favor of an adverse party, or against the client. It's the same objective standard as section 455.
And here you have a great quote from the US Supreme Court in terms of what the rationale is for this extrajudicial source doctrine. "The judge who presides at trial may upon completion of the evidence be exceedingly ill disposed towards the defendant, who was shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes, as in a bench, trial necessary to completion of the judge's task." That's the rationale for why we go to outside the record. There can be internal record reasons for why the judge may be thoroughly justified in finding someone to be thoroughly reprehensible based upon the facts that the judge is required to adjudicate.
Here we have on the next slide the California rules of professional responsibility. We're using rules 5-120, which prohibit extrajudicial statements that will have a substantial likelihood of materially prejudicing an adjudicative proceeding, 5-200, you shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law, and 3-200 prohibits asserting a position without probable cause and for the purpose of harassing or maliciously injuring any person.
Those are the three legs to the stool from the rules of professional responsibility that can be used to skin you as a lawyer if you make a mistake in terms of an illegal or improper charge of judicial bias. What you would've done if you make it improperly is false statements of fact or law, trying to prejudice a proceeding, or maliciously injuring someone without probable cause, i.e., being the judge.
On the next slide, we can shift to the ABA model code of professional responsibility. That says a lawyer shall not engage in conduct that is prejudicial to the administration of justice, and in appearing as a lawyer before a tribunal, a lawyer shall not engage in undignified or discourteous conduct which is degrading to a tribunal. Either of those can be used to hang you if you make an improper ethics charge.
Now, finally, let's flip on the last slide before we start diving into the Harry Bridges trials. We're going to look at the code of conduct of United States judges. This is Canon 2A that applies to all federal judges, Supreme Court, circuit courts, district courts, and magistrate judges. They must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and they have to avoid impropriety and the appearance of impropriety in all activities.
Here, we have Explosions in San Francisco: The Harry Bridges Deportation Saga and the Ethics of Disqualification. This is a great Petri dish case that we'll get into, because it lets us look at charging bias against a judge in disqualification based upon extrinsic record facts and intrinsic ones, and the different standards that can apply, and the pitfalls for lawyers, indeed, as you'll see a lawyer ending up in jail.
The background facts take us here. This is San Francisco, 1934. You have a picture there. That comes from my book, and there on the right's a picture of the actual book cover, called Burning Bridges. We're in 1934. It's the Great Depression. There's massive obvious social and economic anxiety and massive changes afoot. Labor felt aggrieved, and it's really an explosive time. And the ism of that time, of course, was communism, and the red scare that was then pending. The first red scare, before the 1950s and McCarthy. It was an explosive time. And that is a picture of a battlefront in San Francisco on the labor front between labor and management, ultimately.
This brings us to the fact pattern that we assess, because the case that we look at comes out of this, starting in the 1930s. It's the story of Harry Bridges, who arrives as a teenage sailor from Australia. He's not a citizen, and he's simply working as a longshoreman. And he eventually becomes prominent in the 1930s as he rises from simply being a longshoreman, loading and unloading cargo in the San Francisco Bay, to being a prominent labor agitator and leader for sort of a labor revolution.
And he ends up leading in 1934, speaking loudly against what was sort of fake unions at the time that weren't really protecting the workers. And he speaks loudly, and he ends up leading what's known as the Great Strike of 1934. And that picture there shows the explosive response as the police were battling the labor protestors. It was at the time the longest general strike in history as other unions joined it, and it shut down the entire west coast shipping. Literally, San Francisco ground to a halt with cars stopped in the street because there was no gas in gas stations.
And so what happened immediately was that a cry went up that Harry Bridges was a member of the Communist Party, and under the substantive immigration law of the time, you could be deported if you were a member of the Communist Party. So he was placed into an administrative trial. The first trial then occurred in 1939, and Harry Bridges was found to not be a member of the Communist Party.
And the trial had all the drama you can imagine. It's detailed in the book, quoting to the record, and you can't believe it but for the fact that you read the original trial transcripts and it's really real. You have lawyers who ran with Al Capone testifying against him. You have them being government witnesses and then being destroyed on cross-examination. You have convicted murderers who were pressured by the government lawyers to frame Harry Bridges and were promised a pardon, but who broke down on the witness stand crying, refusing to trade their dignity, all they had left, they said, their dignity, to lie on the stand, people who were then later pardoned because they had been improperly jailed. You have assassination attempts, perjuring witnesses, you name it. It's an unbelievable drama.
But Harry Bridges won, and the public outcry then was so huge that Congress amended the immigration laws. And part of the amendment was to shift who would be the decider of these cases. They took it away from the first female Cabinet member in history, the Secretary of Labor, Frances Perkins, and they put it in the hands of the Department of Justice, as immigration now shifted from labor to criminal.
So they now handpick a new judge. They've amended the laws to go after him again. They get around double jeopardy and he's put on trial again, this time with a handpicked judge. He's ordered deported, and the case ultimately goes all the way up to the Supreme Court, that reverses, again saying that all the witnesses were corrupt and improper. It's one of the most moving opinions, if you read it. It's Bridges v. Wixon. It literally has a quote in it from Supreme Court Justice Murphy, who says the case was a, quote, "Testament to man's intolerance to man." It's a really moving opinion in terms of the due process.
So Harry Bridges swears in as a citizen. He's now a US citizen. But immediately, in order to swear the oath of citizenship, you have to swear that you weren't a member of the Communist Party. And although he had won two cases on this already, the moment he's sworn as a witness, the US government, the Department of Justice, empaneled a grand jury, and they charged him with perjury. This brings us to the third trial. Now we're in criminal court in San Francisco, where he's facing prison and then deportation for perjuring when he claimed not to be a member of the Communist Party.
So the trial, as you see on the next slide here, brings is to the question of the judge and the lawyers. The federal judge is Judge Harris, or Vince Hallinan. That was Harry Bridges' lawyer. Hallinan was a famous rough-and-tumble trial lawyer in San Francisco. Literally, he was a boxer by background, and was an aggressive kind of street slugger of a lawyer who was defending Harry Bridges.
And there was a prior relationship between Hallinan and Judge Harris. I'll show you the actual transcripts in a second on some of the slides so you can see, but basically there was this bad blood between the two of them before, where lawyer Hallinan had sued a third party named Eugene for money that was owed. Or sorry, Eugene had sued Hallinan claiming money was owed, and Hallinan said, "No, I don't owe any money." At the time, Judge Harris was a state court judge, and Hallinan said that Harris hauled him into his chambers and told him to really just pay the guy and let it go, which is obviously really inappropriate for a judge to do. Anyway, there's this prior relationship. Hallinan had refused to do it, and actually ultimately won the trial when this guy Eugene had sued him. But there was this kind of bitter enmity between them.
So Hallinan does actually trigger the disqualification motion, but he doesn't do it before trial. He does it on day two of trial. So that lets us talk about, briefly, what happened in terms of the trial. What happens is as follows. Hallinan's making is opening statement, and his opening statement to the jury is basically ... Now we're in 1949, 1950. So he says, "For 15 years, dozens and dozens of witnesses have been put forth by the government to say that my client's a member of the Communist Party, and they've all been proven to be liars. So the witnesses you will see in this trial are perjurers and liars."
He's saying that in his opening statement. His opening statement draws so many objections from the government that it's stunning to really read. You don't read transcripts with that many objections normally. But the government keeps objecting, and the judge keeps sustaining the government's objections and telling Hallinan that he doesn't get to try that case and tell that backstory. And Hallinan's adamant that he gets to tell this story to defend his client here, that his proof that his client was not a member of the Communist Party is that it's been a frame-up for nearly 20 years now, and he intends to prove it. And the judge tells him, "Well, that's not the trial you're going to try here."
So the opening statement on day one is really a disaster for Hallinan, because he's being highly limited in the case that he gets to put on to defend his client. So you then show up on day two of trial, and the first witness that's brought to the stand is the administrative officer who swore Harry Bridges in. He testifies for the basic facts. The government wants him to talk about how Harry Bridges came down, he swore in, he became a witness. And Hallinan then on cross-examination immediately starts launching into trying to discredit him as a perjurer and part of the government witnesses who've been proven to be perjurers and liars, and the judge shuts him down and tells him that you don't get to cross-examine him like that, and this is a decent, as the judge put it, mild-mannered administrative clerk. You don't get to accuse him of all these terrible things. That's day two.
Day three, they show up at trial and the judge is there on the bench, the jury's left in the jury room, and the judge starts reading from this large stack of papers, and proceeds to hold Hallinan in contempt of court for his behavior, and discusses how he's going to throw Hallinan in jail now. So that's what triggers the question about Hallinan charging bias against the judge. He then jumps up and charges bias. And literally the drama's unbelievable, because Hallinan is about to be dragged from the court by the marshalls, who are descending upon him. He's literally holding onto the podium to make his case of bias to charge the judge.
So he does charge the judge. The question is, from these facts, could a reasonable observer think the judge was biased? And you see here the answer is yes, but it's not a slam dunk based on the old story. The facts were concrete and not speculative. Here on the next slide, you can now actually see the actual copy of the transcript that was taken. This is old, really thin paper. It's incredible to go through these ancient records in the National Archives.
But you have here the story. George Harris stated that he was about to find Hallinan in contempt of court, and Hallinan arose and charged the court with acting upon him with the premise of a personal bitterness or hatred. Hallinan then told the story about how Harris was a personal friend of Eugene Aureguy, who was an enemy of Hallinan, and how George Harris had taken Aureguy's part in a controversy between Aureguy and Hallinan, and he had urged Hallinan in the privacy of his then state chambers to transfer 10,000 to Aureguy. Hallinan, again, had refused. Hallinan actually then won the trial. Aureguy lost. And he, based on that, said, "You, Judge, are biased."
Those facts are, within the record, fair. So the question is also, as you see now on the next slide, what should the judge have done? What should Judge Harris have done? Well, the facts of the bias were twofold. We have the extra-record evidence of this Aureguy story, and this assertion that the judge had actually tried to pressure Hallinan to pay someone some money in his own chambers, because the guy was a friend of the judge and was an enemy of Hallinan. And you also have Hallinan, part of his charge to the judge when he was charging bias was that he said, "Judge, you're biased against my client, Harry Bridges. You're in favor of the government. You are trying to help the government win their case in this longstanding Cold War battle, and you're biased for that reason." So each of these trigger different analyses for us as lawyers, and for advocates. You have the extra-record facts, Aureguy, and you have the in-record facts.
And you then have this idea that a lawyer's belief that the case is being unfairly limited is simply not enough to show bias. This is what's important about all cases, especially high-emotion cases, which could be cases of the day, the terrorism cases, perhaps, today, or we have a lot of cases coming out of all the political fallout and drama of the 2020 election and the last several years, and they create a lot of emotion on both sides. Within the four corners of the case, you have to be very careful, because if you don't like the evidentiary rulings from the judge, it is very hard to use that as a basis to charge bias. Your remedy is to take it up on appeal. You don't get to accuse the judge of bias.
And you have to be very careful, because if you go too far in accusing the judge of bias in front of the jury, you could actually damage your case. Or you could damage your case even if it's outside the presence of the jury by infuriating the judge. So you have to look very, very carefully at these rules.
Here, the line between zealous representation and damaging the case was probably tripped by Hallinan when he made the bias charge based upon in-record behavior. Now, the extra-record facts were actually legitimate, concrete facts. They weren't speculative, and they definitely told a story about bias. So what the judge should have done is, based upon that, the judge should have disqualified himself, probably, and sent it to a new judge.
Now, let's look at the next slide. Here's an actual transcript from the proceeding. You can see, what did the judge do? There you have Hallinan ... You have the judge there saying, "You know in your own heart, your own conscience, as you stand there, that everything you have said this morning is false, untrue, unfair, and scurrilous. Man to man in an alley or in a courtroom, you couldn't look me in the eye and say that." That's the judge. And then Hallinan says, "Let me file an affidavit making the charge, and you charge me with perjury, sir." The court. "You will not file the affidavit, Mr. Hallinan." "Then we will try it out." The court. "You will not file any affidavit before me, Mr. Vincent Hallinan."
And there on the next slide, page 846, you see Hallinan responding, "Well, I will file it with the clerk upstairs, Your Honor. I am entitled to my rights in this court too, and I'm entitled to not be tried by a personal enemy on a contempt proceeding." The judge. "It will be stricken from the files." So his motion was denied.
And you now see on the next slide here really just some ... It's remarkable to look at what was happening. This shows really the problems with the judge, at the end of the day. This is an actual quote from ... This is, again, photocopy of the ancient paper. This is the judge talking. He's talking about himself in the first person. "I suppose I am a rather peculiar sort of fellow. I can't harbor malice. I can't harbor the subject matter that Mr. Hallinan poured into this court today. All his statements, all those things, are untrue. He knew it. If Mr. Gladstein were available, I assume there'd be no problem. He has represented this man, Harry Bridges, in other matters, two in number." And of course, what the judge is referring to here is the fact that in the first two trials, this attorney Gladstein had represented Harry Bridges. The great irony was that Gladstein was unable to be Harry Bridges' lawyer in this third trial because Gladstein himself had been thrown in jail back East in representing an alleged communist, and got crosshairs with the judge and got thrown in jail himself. So that's the irony.
So the judge here is musing about what to do with Hallinan, having denied the disqualification charge, denied everything Hallinan said, and concluded Hallinan's in contempt, and he was going to throw Hallinan in jail. And you see on the next slide here, what did Judge Harris do? Well, he actually on the spot sentenced Hallinan to six months in jail for contempt of court. There was really no prior notice in hearing. He just came out of the bench and did it that day in this great melee as Hallinan then fought to save his client and also himself.
Ultimately, the judge stayed the sentence because he went to Harry Bridges and said, "Can you go get a new lawyer?" and Bridges was very savvy and said, "No, I have the lawyer I want." So Hallinan was given a stay of execution on the sentence. He was allowed to represent Harry Bridges throughout the trial, but literally was thrown in jail at the conclusion of the case. And at the conclusion of the case, the jury actually convicted Harry Bridges.
And you see here on the next slide Judge Harris speaking to the jury after this trial, which was the longest trial in the history, at that time. And the trial, you can read it in the book, but explosive. The most unbelievable cross-examinations. Again, a new cast of perjuring witnesses. You have witnesses saying they say Harry Bridges at a Communist Party meeting in New York on a given date and time, and then Hallinan pulling out newspapers from San Francisco showing at the same date and time Harry Bridges talking to labor meetings in San Francisco. I mean, it's just the stuff that drama is made of.
And you see here, though, the judge at the conclusion of the case telling the jury ... You know, the verdict stands, it's been recorded. And then he turns to the jury and says, "I want to say a few words to you." And he says, "Not only has this case been the longest criminal trial in the history of the courts, but in addition it's been the most bitterly contested." That's an understatement when you read the record. "And the length of the content has been reflected in your deliberations, and in the fervor and devotion that you've attached to your duties. In terms of discharging your obligations of jurors, I desire you and each of you to know, as well as your diligent foreman, that you have evidenced an intelligent appreciation of the facts in light of the legal principles applicable. You have finally found the golden truth shimmering in the fiery crucibles of this trial."
It's a really remarkable statement by a judge, to go to a jury at the conclusion of the case and tell them that they got the verdict right. Probably it's indicative, in reality, of the fact that the judge himself had had such a long battle over the months of trial, because those explosions that we saw on day one, day two, and the ethics charges went on basically every day for the multi-month trial, that the judge was worn out by the end of it and really had become conflicted himself, and biased.
On our next question though, here, we can see the question is, what should the lawyer have done? What should Hallinan have done? Did he go too far and trip his ethical obligations to his client, or did he do exactly what he had to do for his theory of the case? These are very hard questions of law, and they're set against this angst background. It may be terrorism today, or any area of the law that's rich in policy for juries. Could be areas where you have statutory damages awards that are divorced from actual damages, and so it's explosive and rich and it creates a lot of tension for everyone.
But the question is ultimately, what should a lawyer do in that case? The answer here for Hallinan is that he was proper in charging bias based upon the extra-record facts, but not on the in-record facts. The problem that he confronted fundamentally was that he knew about the ancient history and the bitter problem between him and the judge before the trial started, and he should've sought disqualification out of the gate the moment he showed up on the scene, and not waited until the trial had begun. That's part of the problem for him, fundamentally.
So the trial ended, and as you can see here on our postscript to our ethics dilemma for Hallinan and the judge, because they were both ultimately at fault. The problem, though, is that the Ninth Circuit affirmed Harry Bridges' conviction, but it did actually note in that affirmment of Harry Bridges's conviction that Judge Harris had been improper in some respects.
Harry Bridges took his case to the US Supreme Court, and it took grant cert, and it again reversed, in another reversal. So now you have Harry Bridges having not only won three trials in terms of the claim that he was a Communist Party member, two of them had gone to the Supreme Court, and twice the Supreme Court had reversed.
But here's the problem. Hallinan actually spent six months in the freezing Puget Sound federal prison penitentiary, where he served his six-month sentence. So the problem here ultimately is that Hallinan did go too far in his conduct. Although the Ninth Circuit noted the judge had gone too far, the judge didn't go to jail, but Hallinan did. That's the lesson for us as lawyers. One has to be very, very careful in terms of charging these things.
Wait till the end of the program and I'll tell you what happened, because I told you in the beginning there were four trials. Believe it or not, even after Harry Bridges had won at the Supreme Court for that second time, and now we're in 1953, again the government went after him on a fourth trial seeking to strip him of his citizenship so they could deport him. We'll get to that at the end. But now we're going to shift and take these ethics questions of in-record and extra-record facts and look at disqualification motions in federal court today. The same standards apply. So let's get going today.
Here are the common scenarios that you confront when you are pondering whether you can knock out a bad judge and file a disqualification motion because of ethical violations, or whether it's going to be the ethics boomerang and come back and get you. The five scenarios we're going to look at with these motions that we can file are, number one, a judge's prior relationship with parties, number two, the judge's prior relationship with a witness, number three, the judge's prior relationship with one of the lawyers on the case, number four, a judge's public commentary on issues, and then number five, lawyer behavior that may engender judicial animus. We're going to look at some actual real-world cases that cover all five of these scenarios, and we're going to end by talking a little bit about some judicial judge's ethics disqualification motions that come up in the context of race-related comments or challenges.
Let's go to scenario number one. This you see, and remember, is our judge's prior relationship with parties or experiential connections. What we're looking at here is this fundamental rule. A prior relationship between a judge and one of the parties or the experiential connection between the judge's past and the subject matter of the case may allow a judge to be disqualified, but it rarely compels it. Being an acquaintance with someone is simply not enough. Now, if the relationship is too friendly or too antagonistic, then disqualification is possible. So you can see it's complicated in terms of the facts and circumstances, in terms of the spectrum between whether the relationship is low-level enough or too high-level.
The other key point here is that shared belief systems are simply not enough. So the fact that a judge may have a shared belief system with one side of a case and not the other is not going to be enough. Let's look here at the case study of Bryce v. The Episcopal Church. This is reported at 289 F.3d 648, and it comes out of the Tenth Circuit. What you had was a case where the judge was the same religion as the defendants. This was a church dispute against the Episcopal Church. And the plaintiff said that the judge should be disqualified because he was a well-known member of the Episcopal Church and he was very involved in his church, and so that he would therefore be biased because he was experientially or associationally too connected to the defendants. Now, he wasn't a member of that actual Episcopal Church. It was just, he was of the same faith. And the court held that that was too tenuous to justify disqualification.
The question, of course, we have to then ask is the ethics question for the counsel. The judge had not violated his ethical rules. Did the lawyer go too far in charging bias? He probably did. He didn't face, from what we can see, any repercussions from the ethics, from the state bar, but he certainly probably damaged his case, because it was too tenuous an argument. You're pushing a rock too far up a hill when you've got some dispute that happens to involve a church, and someone who's not a member of the church but happens to maybe share the belief system of the church ... It's like saying if there's a wage and hour lawsuit against Ralph's Grocery Store and the judge shops at Ralph's, maybe he'd be biased. It's pushing it a little too hard, I think. And so it may well have had the potential to actually damage the client's case with a judge who's now been charged with something unfairly and improperly. That can create a boomerang effect for you.
Now let's look at similar shaping experiences. We have an example here from 246 F.3d 1092. This comes out of the Eighth Circuit. It involves a sexual abuse example, where it's a criminal case and the judge had been an outspoken victim about childhood sexual trauma himself, and now is a federal judge many years later. And the charge was made against the judge that you having been a sexual victim yourself of crimes as a minor, you are not appreciate to decide this criminal trial that's going after someone for sexual abuse and sex crimes.
And the court said, no, again, that sort of shared experiential connection wasn't enough to, per se, disqualify the judge. It had occurred many, many decades ago, and the judge explained that it didn't affect his decision making. It was something he had to dealt with and part of life's experience, but didn't hold any animus towards other people charged with it. And the record seemed to be that that supported it, and so the judge wasn't disqualified.
Did the lawyer go too far? I don't think so in that case. That's a different case, where the judge actually explained the absence of a connection between this experiential bias, but it's because the judge explained it the way he did that it was a fair conclusion that the judge wasn't biased, but it's also a very fair and important conclusion that the lawyer didn't go too far. Given the judge's outspoken comments outside the record about the topic, it was fair and probably critical to raise the issue on behalf of your client.
Now, the other bullet point here is that familial connections to witnesses and parties can trigger disqualification. Here we have an example of United States v. Toohey from the Second Circuit. It's reported at 448 F.3d 542. It was a sex harassment claim. The defendant was charged with improper behavior, and the judge said, about the defendant, because the judge knew the defendant, "He's an honorable man, and I know he would never intentionally discriminate against anybody."
Now, that met the objective test, and disqualification was required. That is the type of relationship between a judge and a party that requires a judge to disqualify himself. It's a violation of those judicial canons we spoke about earlier. So the counsel was absolutely correct to charge it, and the judge absolutely had to be disqualified. So that was appropriate. The judge being in that position, feeling that this person is such a good person because the judge personally knows him, cannot then maintain that impartiality and that perception of impartiality that the law simply demands.
Let's move now to scenario two, the judge's prior relationship with a witness. The general rule here is that acquaintance or familiarity with a witness does not require disqualification. The question is always, again, what are the exact facts and circumstances? The case study we're going to look at here is Fletcher v. Conoco Pipe Line. It's reported at 323 F.3d 661, and it comes out of the Eighth Circuit in 2003.
Here, we have a fact witness in the case. This is a third-party witness who was functioning as a fact witness. It happened to be a lawyer, and the judge had known this lawyer for 36 years. In this big case, Fletcher v. Conoco, for whatever reason there was this third-party lawyer who was a percipient fact witness about some of the events between Fletcher and the Conoco Pipe Line company. And the judge knew this fact witness lawyer who was a lawyer for 36 years, obviously because the lawyer had been practicing in the same community as the judge.
And it also turned out that that fact witness was at a law firm, and the same law firm was the law firm currently representing the judge in a completely unrelated matter.
So the court held, when the disqualification motion was sought based on those bases, that those facts were not enough to overcome the presumption of impartiality, and so the judge had no need to disqualify. What's critical here is that the witness was not a dispositive ... It wasn't a party, and it wasn't on a dispositive issue in the case. And because the matter was unrelated, the court said that the presumption of impartiality really wasn't overcome, and so that here the existence of the prior relationship didn't mandate disclosure. Disqualification, sorry.
Now, it was not an ethics violation for the lawyer to charge it. That was a legitimate fact pattern that was concrete. It was not speculative, and it was the type of fact pattern that could fairly and reasonably cause one to question whether there was the potential for bias.
Now, on the flip side of this line, you can see our but see citation here. This is to United States v. Kelly. It's at 888 F.2d 732, and it comes out of the Eleventh Circuit in 1989. Here, you have a judge who, like our Conoco Pipe Line case, the judge knew the defense witness. But here the judge actually on the record expressed some concern because the judge knew the witness, and just was nervous and felt, I know him and I know him well.
So there, the Eleventh Circuit held that because the judge himself harbored some concern about his familiarity with this defense witness that the judge absolutely should've disqualified himself. It was unacceptable to oneself as a judge feel a little bit of a concern given the closeness of the relationship to the witness and then not disqualify. That alone proved that to a reasonable, impartial outside observer, there certainly could be a perception of bias, and so disqualification had to follow.
Now we look at scenario three. That is a judge's prior relationship with one of the attorneys on the case. The general rule is as follows. Acquaintance or familiarity with a lawyer does not require disqualification in general, but it does depend upon the level of intimacy. Close friends can be lawyers and not require disqualification, but situationally it can also require disqualification if there's too much enmeshment.
In other words, a judge can be a friend with one of the lawyers before him, and they may see each other at social events and whatnot, and that doesn't mean the judge must always disqualify himself every time that lawyer friend of his appears in his court. It really is situational to how much enmeshment.
A very good case study to look at as an example of what is too much enmeshment is the case of United States v. Murphy at 768 F.2d 1518. This is from the Seventh Circuit in 1985. The facts of this case are basically as follows. There's this criminal prosecution against Mr. Murphy, and the federal prosecutor on the case was a close friend of the judge. The case is being tried. It's a contentious case, obviously. Someone's got their life and liberty on the line.
And unbeknownst to the criminal defendant at the time, the federal judge and the prosecutor on the case actually had a joint family vacation planned that was set to go right after the trial ended. It was the same trial that the prosecutor was in. The matter was not brought to everyone's attention at the time. It was discovered subsequently, and the defense lawyer then rushed into court and said, "This is outrageous, and there should be a disqualification, because the prosecutor and the judge were sufficiently close friends that they were going on a joint vacation with their families that was being planned at the same time the prosecutor was appearing before the judge trying to prosecute my client."
The Seventh Circuit in this case agreed, and they said that although they didn't believe in fact that the judge harbored any bias and in fact behaved in picking the prosecution over the defense, it didn't matter, because the perception of public fairness and integrity was tripped by that, that that kind of friendship level between a judge and a prosecutor was, as the court said, unusual. It was just too much. And between the unusual closeness of the relationship, shared family vacations, and the timing of them, coming right on the heels of the trial, the court said that a reasonable outside observer could fairly question the impartiality of the judge. The objective test was tripped, and disqualification then had to follow.
So that's a really good example of a judge being on the other side of the line. If you think about it, when you compare it to the prior cases we looked at, you now can see a spectrum, because you have the Fletcher-Conoco Pipe Line case, where it was a minor witness, the judge had known him for many years, and even though he was hired by that witness's law firm, or that law firm represented him, it wasn't enough. But it was close.
And then we saw United States v. Kelly, where it was again a witness, and the judge was a little concerned and said it, and the court said that's enough. And now you have Murphy, which goes further down the spectrum, and it really shows us that that level of friendship with actually now one of the prosecuting lawyers who was on the case before was simply too much, and did require disqualification.
Now we go to our fourth scenario. Our fourth scenario is when we have judges commenting on public issues or legal issues, and those same legal issues end up appearing before the judge in the judge's courtroom, in one of the judge's cases. The question obviously arises as to whether the judge's active engaging in some sort of public commentary on legal topics is enough to then require disqualification of a judge for tripping these ethics lines when they have cases that touch on those same issues.
The general rule that governs here is that an unusual level of judicial public commentary will require disqualification, but if the judge has engaged in what are really balanced public statements, then it doesn't require disqualification. I know it's frustrating, but there again you have it. The rule, like all the rules in this situation, are facts and circumstances rules. They are rules that have bright, clear lines on either end of what's just clearly improper or clearly proper, but so many of the fact patterns are in that murky middle, where you can have a general rule that has exceptions. It really is facts and circumstances driven, and so you have to then look very, very carefully at the facts and circumstances so that you as a lawyer know that you are proceeding carefully and not tripping the ethics wires yourself when you're making an ethics disqualification charge against a judge.
Let's look at our first case study here. We're going to look at two, and these paint out the spectrum here on the commentary on public issue example. The first case is Cooley, and the second one at the bottom is Pitera. They each frame either side of the line. One, a judge went too far, one, a judge didn't go too far.
Let's start with the judge who goes too far. That's United States v. Cooley, at 1 F.3d 985. This is from the Tenth Circuit in 1993. This case involved a case where the judge who had this case, United States v. Cooley, had appeared on television before the case was in existence and had discussed what were then protests going on at abortion clinics, and the judge had said publicly on this television, speaking as a commentator about protests at abortion clinics, that the protests were illegal.
The judge then ended up actually then having one of the cases involving someone who was arrested and indicted for protesting at the medical clinics. And the parties then, the defendant, sought to disqualify the judge on the basis that you, Judge, have commented on this, and you've already prejudged the case. You talked about this set of issues, and so that requires disqualification. And the judge refused to disqualify himself upon motion, and so that went up to the Tenth Circuit.
And the Tenth Circuit held that absolutely disqualification was required. Indeed, it found that not only was there no ethics violation in the lawyer making the charge, but really the judge's failure to recuse and disqualify was itself really an ethics violation of the judge.
Here we see the quote from the Tenth Circuit that really frames this through the ethics prism for the judge. "Together, these messages unmistakably conveyed an uncommon interest and degree of personal involvement in the subject matter. It was an unusual thing for a judge to do, and it unavoidably created the appearance that the judge had become an active participant in bringing law and order to bear on the protesters rather than remaining as a detached adjudicator."
That's a pretty stinging indictment. I mean, it's couched in the legalese that appellate opinions obviously couch their language in. But it is a pretty stinging indictment against the district judge for having simply gone too far. And again, the language there, uncommon interest, that tracks the prior case, the unusual nature of the friendship in the Murphy case between the judge and the prosecutor. And again, what the court here is saying is that for a judge to go on TV and agree to be interviewed, and then to offer an opinion about whether protesters involved in some protest were lawful protesters or unlawful protesters is itself a little unusual. Our speaking heads on CNN and the like aren't normally our federal judges, especially in the district where this is occurring. So that willingness of the judge to go on TV itself was uncommon and showed a level of interest and personal involvement that was just a little too much to then stomach the idea that there was the ability of that same person to maintain sufficiently impartial. So again, it raises real questions about the legitimacy of the legal system, and so that requires disqualification.
Now let's look at the flip side case, though, of where a judge discusses things publicly but it doesn't require disqualification. This is the case of United States v. Pitera. It's at 5 F.3d 624. It comes out of the Second Circuit in 1993. This case involves the following kind of background facts. You have a federal judge who gave continuing education programs to the DEA and to prosecutors, and talked about the different steps that they could take to increase their prospects of convictions in narco cases. In the lecture, the judge basically talked about narco cases that appeared before the judge and the things that are done good, the things that are done bad, what works, what doesn't work, and the judge spent time explaining the types of evidence that helps, that doesn't help. It's the standard type of stuff you get in continuing education programs.
In those CLE programs the judge gave, the judge actually did critique the prosecutors. It wasn't just a sort of here's how you get them program. It was a continuing education program speaking about how narco cases are done and the downside and the upside to them. And the same judge had also spoken on other programs to the criminal defense bar about narco cases and what to do.
So in this case of Pitera, the defendant's lawyer brought a motion saying, "You, Judge, should be disqualified because this is a narco drug case, and you've spoken to prosecutors before about things they can do to be better prosecutors." And the court held that no, that didn't require disqualification, because continuing education programs ... critically, where the judge had been on both sides of it. It wasn't the just going in secretly to the prosecutor's office and giving a bunch of back-pocket tips on how to nail the defendants. It was a balanced program, and the judge had spoken to both sides of the bar at different programs for the bar on these cases in terms of how to prosecute and how to defend them, in terms of things that worked and didn't work.
So that's an example of judicial commentary on legal issues that will be appearing before the judge where the judge can do it and do it in an appropriate manner. But again, it'll always be facts and circumstances driven. It could be the case that you have a judge that does a continuing education program and simply goes too far, and shows in that program a lack of balance and the existence of bias.
Now on our fifth scenario, we boomerang back, which is the right word given our boomerang metaphor we've used in this program, to lawyer behavior. The general rule, again, is that a party cannot force disqualification by attacking the judge, and then when the judge is upset at you and punishes you, claiming that the judge biased as proven by the punishment you're receiving by the judge for your behavior.
So the massive general rule is important, and that is that strategic behavior to trigger a basis to bring a disqualification motion so that you can then get rid of the judge you don't like is simply not enough to justify disqualification, and will itself trip those ethics lines we talked about earlier, because it ends up becoming an example of getting too aggressive in the face of the judge and trying to create an animus or animated judge filled with animus towards you in order to then make the charge that the judge is biased. That becomes an example of those California professional rules of responsibility and the ABA rules we talked about in the very beginning, where you've gone too far.
Now, the flip side to remember here is important, and that is that you can have lawyers speak publicly in positive ways about judges. For example, there's some big case going on, and imagine I was a talking head and CNN wanted to give me my five minutes of fame, and I got on TV and I spoke about some pending issue in the courts, and I said that that judge is a good judge and is handling the case well and appropriately in terms of how those cases get held. So imagine that's our hypothetical.
Then later on down the road I have a case and I'm appearing before that judge, and the other side says, "Oh my gosh, you, Judge, have to be disqualified and should recuse yourself because Peter said positive things about you in some other context, and so therefore you are going to be favorable towards Peter here, kind of pay him back for having spoken so publicly and nicely about you on national TV, blah blah blah." Right?
That doesn't require recusal. That isn't the type of thing such that my behavior as a lawyer, speaking publicly about a judge in a positive way, would require a judge then to have to disqualify himself, because systemically we don't accept the idea that if a lawyer has said something positive about a judge, the judge will necessarily somehow be paying that back in some way. So as a general rule, that is not going to require recusal of a judge.
Now we get to the final segment, dealing with race and the ethics of disqualification motions when you have race charges. We're going to look at a few cases in the context of race and the difficulty that can be created by making race charges. The general rule is that charging race as a basis for recusal requires really powerful evidence, and making a charge lightly is unequivocally going to be an ethics boomerang.
We're going to look at the first case, which paints out this general rule. You can see as we paint out the painting with the facts here it's the case of MacDraw v. CIT Group. This comes out of the Second Circuit in 1998. The basic facts of this case are that the plaintiff's lawyers in the MacDraw v. CIT case were involved in a very high-profile case, not this case, but another case. It was involving campaign finance charges against Asian bar groups in terms of the Clinton administration.
The CIT case involved Federal District Judge Chin, and the lawyers, then, the plaintiff's lawyers, said that ... They went to Judge Chin and said that you were appointed by President Clinton to the bench, and we as lawyers are in another case making ... In this highly public case we're making big charges of campaign finance against the Asian bar organizations and community, and we're making them against the Clinton administration. You're Asian, Judge Chin, and you were appointed by Judge Clinton. And so connecting those dots, since Judge Chin had also been active in the Asian-American legal bar groups, they said that they could connect the dots and make the argument that Judge Chin then was going to be biased against them because of their pursuit of Asian campaign finance violations by the Clinton administration.
And Judge Chin denied their motion, and the Second Circuit affirmed. And the Second Circuit affirmed in the most brutal manner. This gets us to our ethics question. They said fundamentally there was no basis for disqualification. Here, you have the actual quote showing the ethics violation under the model rules. The Second Circuit said, "It is intolerable for a litigant, without any factual basis, to suggest that a judge cannot be impartial because of his or her race and political background."
In other words, the idea that Judge Chin could not be a fair judge in the MacDraw v. CIT Group case because he was Asian and was appointed by President Clinton, and because these lawyers who were appearing before him happened to be taking on the Clinton administration and making Asian political campaign finance claims, the idea that you could connect the two with dots was nothing short of intolerable. So it's a good example of the absolute horrendous danger that befalls you by making a race charge too lightly and suffering heavily for it.
Let's go on to our next slide here. As we continue the race dialogue here, we have the general rule that judicial commentary on race in the decisional process, whether it's sarcastic or not, will absolutely trigger recusal requirements. These cases are older cases, and one, I think, could fairly say in the 21st century, and now entering the 2020s, it's even more the case that these general rules would certainly apply.
Here we look at In re Chevron USA. This is basically a mass tort class action claim brought by predominantly Black neighborhoods against Chevron. We had an African-American judge who, during the case, made sarcastic comments about the race of the experts being Caucasian, and also happened to reject the expert study. The plaintiff and the judge each said that, look, it was sarcastic and was obviously not said for the truth of the matter. In fact, the judge wasn't in fact being racist. And it seems pretty clear he wasn't. It was sort of sarcastic commentary on the fact that the expert study was being rejected in this race-central case, and him noting the experts were Caucasian.
But nonetheless, here's what the Fifth Circuit said. "We agree with Chevron that the challenged statements and comments are unfortunate, grossly inappropriate, and deserving of close and careful scrutiny and most serious consideration. It is totally unacceptable for a federal judge, irrespective of the judge's color, to make racially insensitive statements or even casual comments of the same during the course of judicial proceedings. Such are not to be tolerated in any litigation, and most decidedly are verboten in litigation in which racial or ethnic considerations are relevant to an issue before the court. When they occur, the risk of creating a public perception that the judge has a bias or prejudice which might affect the outcome crosses the prescribed threshold. This is especially true in a racially charged case such as the instant one. Accordingly, here a reasonable person might indeed harbor doubts that the trial judge's impartiality, and recusal would be appropriate under the terms of 455."
That's a good example of a judge who's simply gone too far, that in a case involving race issues it is all the more inappropriate for the judge to ever make any kind of commentary upon race, whether sincere or sarcastic. As the court noted, really in any case, although in that case it was one that did involve underlying race-related issues in the case.
So that really is an example of, again, the court couches all of it in terms of the reasonable person standard we talked about under 455, but it is an example of a judge who tripped the ethics lines and went too far. So that's an ethics violation by the judge in that case.
Now, the next case is United States v. Franco-Guillen. Here we have a case where you have a Hispanic defendant who pled guilty and then later on moved to change the plea. This had happened several times in different cases with Hispanic defendants before the judge, and the judge was frustrated. The judge said, "I will not put up entire from these Hispanics or anybody else, any other defendants. I've got another case involving a Hispanic defendant who came in here and told me that he understood what was going on, everything was fine, and now I've got a 2255 from him saying he can't speak English." That's trying to set aside his plea of conviction.
And the court there held, the Tenth Circuit, it's unpublished, but nonetheless held absolutely disqualification was required. Here we can go back to our ethics prisms for the judge and for lawyers, but for the judge too, that you have to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and to avoid impropriety and the appearance of impropriety. That was simply too much for a judge to be talking about the defendants in that sort of race-imbued sense.
Now, on our next and final substantive slide here we talk about the ethics of judging these questions. Who judges the judge? The judicial impartiality standards from the ABA's model code, and the premise of the law really from Blackstone, is that the law doesn't suppose a possibility of bias or favor in a judge who's already sworn to administer impartial justice. The authority of the law greatly depends upon the presumption of that idea.
As a result of that, we actually get differing rules, and states can differ. In some states, judges can look at the own motion before them, and in other states, any time a motion for disqualification based on these types of ethics questions is made, it goes to another judge. Now, most states require it to go to other judges. The federal standard on these types of motions generally requires also that it goes to another judge.
There are two fundamental polestars of overarching policies that we have to keep in mind here on both sides of the bench, for the judges and for the lawyers. That is, public confidence requires judges are not just neutral, but always perceived to be so. But the flip side of that is that the system cannot be subjected to abusive attacks as a means of exploiting the impartiality requirement. So that is the balancing line that is always kept in these questions. The better rule of thumb, though, is that judges should send these motions to other judges to show public confidence in the system and to show that we're able to know that the judges are not just neutral, but are actually perceived to be neutral.
And this brings us to our conclusions today on this program. Check your jurisdiction carefully, given the absence of a uniform standard. Remember, we have different rules from different standards and different jurisdictions, so be very, very careful. The other important rule is that you have to be very careful charging recusal in federal court. It is a difficult standard, and you could have a boomerang in terms of damaging your case, or even if not damaging it, your client believes that you've damaged your case.
Here's another practice pointer. If you are proceeding in federal court, file a motion under 455 and 144 together. There's no reason to do one and not the other. Remember, you have to have concrete facts so you don't trip those professional responsibility ethics rules related to integrity and in-court statements.
And finally, this brings us back to Harry Bridges. You don't have to buy my book, although of course I'd love it if you do. But I'll tell you what happens. So, he went to a fourth trial, as I mentioned him, where the government was trying to deport him. And again, it was another trial filled with explosive, interesting witnesses. But here, the federal district judge at the end of the case said that the government had again put on a case of perjuring witnesses, there was no basis to strip him of his citizenship and then deport him, and so Harry Bridges finally won after spending literally 20 years in serial deportation trials.
But here's the important point on the boomerang. Who represented him in that fourth trial? It was not Vince Hallinan. He went to a different lawyer. So keep that in mind.
I hope you've enjoyed this program. As ever, if you have questions, please reach out to me.