Basic Fairness

Code Of Judicial Conduct

E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

Commentary. - Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared.

A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.

By decisional law, the rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In the latter case, the judge must disclose on the record the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable.

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge * of disputed evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;

(c) the judge knows * that he or she, individually or as a fiduciary *, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household *, has an economic interest* in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis * interest that could be substantially affected by the proceeding;

(d) the judge or the judge's spouse, or a person within the third degree of relationship* to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director or trustee, of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known * by the judge to have a more than de minimis * interest that could be substantially affected by the proceeding;

(iv) is to the judge's knowledge * likely to be a material witness in the proceeding.

(2) A judge shall keep informed about the judge's personal and fiduciary * economic interests*, and make a reasonable effort to keep informed about the personal economic interests of the judge's spouse and minor children.

* de minimis - denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality.
* third degree of relationship - the following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncles, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece.
* fiduciary - includes such relations as executor, administrator, trustee, and guardian.

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