David Kluft asks: “If I know the judge should recuse herself, but I don’t want her to, can I keep my mouth shut?” —

• “Judges may be disqualified from a case for a number of reasons, including a personal relationship with a party, an economic interest implicated by the case, or extrajudicial knowledge of the underlying facts.”
• “ABA Opinion 522 addresses situations in which a lawyer knows about grounds for a judge’s disqualification, but for some reason the judge hasn’t raised it, perhaps because the conflict is not obvious or the judge’s memory has failed. Does the lawyer have an affirmative obligation to bring it up even though the judge doesn’t?”
• “The answer is yes, per Rule 8.4(d) (conduct prejudicial to the administration of justice). The ABA interprets Rule 8.4(d) as requiring officers of the court to speak up and disclose ‘procedural or jurisdictional information,’ that could impact the fairness of the proceedings, and that includes information that would get the judge recused. Note, however, that this duty may be limited by the duty of confidentiality under Rule 1.6.”
• Opinion: here.

“Alito bows out of blockbuster Supreme Court climate case” —

• “Supreme Court Justice Samuel Alito is stepping back from a major climate argument just a week before the court is scheduled to take up the case. Alito had faced calls to recuse himself from Suncor v. Boulder over his financial interests in energy companies. A Monday letter from Scott Harris, clerk of the court, informed the parties that Alito ‘has determined that he will not continue to participate in this case.’ The notice did not further explain his decision to sit out arguments Oct. 5, the first day of the court’s new term.”
• “In the case, Colorado localities are seeking damages under state tort laws related to the effects of climate change. The suit named Suncor and ExxonMobil. While Alito does not hold stock in those companies, he is invested in several other fossil fuel companies, including oil giants ConocoPhillips and Phillips 66. They are named in many lawsuits similar to Colorado’s that have been filed around the country. The future of those cases will be affected by the Supreme Court’s ruling in Suncor.”
• “A spokesperson for the court as recently as May had said that Alito wouldn’t recuse because he didn’t have a ‘financial interest in any party’
• involved in Suncor and that he was advised by the court’s legal counsel that ‘his recusal is not required.'”
  “Alito did recuse himself when the court turned away an appeal from the companies in the Colorado case in 2023. But that recusal came as the court on the same day rejected appeals in similar cases involving other companies, including ConocoPhillips and Phillips 66.”
• “The court spokesperson said earlier this year that Alito had ‘inadvertently recused’ himself in the earlier Colorado case ‘because it was considered at the same time as other cases where the justice did have a financial interest in the parties.'”
• “Alito had resisted calls to step aside from the upcoming climate argument, even as watchdog groups note that the entire oil industry is likely to be affected by the decision. California-based Consumer Watchdog has noted that both ConocoPhillips and Phillips 66 have warned shareholders multiple times over the past decade about the potential financial consequences of the litigation.”
• “‘The public should not have to wonder whether a justice’s personal investments could benefit from a ruling that shields the fossil-fuel industry from liability,’ said Organizing Director Alexandra Nagy.”

“NJ Justices Take On Atty DQ In Injury Cases After J&J Ruling” —

• “New Jersey’s Supreme Court has agreed to review the disqualification of an attorney from representing plaintiffs in several cases over injuries at Sky Zone trampoline parks after a trial court ruled the attorney’s retention of a former company safety official as an expert could prejudice proceedings.”
• “In June, the Superior Court’s Appellate Division affirmed a Superior Court disqualification ruling from April. Plaintiffs in the injury cases represented by Chazen then filed a motion for leave to appeal to the state’s high court.”
• “In a July brief, the plaintiffs argued that the Superior Court improperly relied on a February appellate decision that disqualified the Beasley Allen Law Firm from representing plaintiffs in multicounty litigation over Johnson & Johnson’s talc-based baby powder.”
• “In the J&J decision, an appellate panel said that the association of someone who had represented J&J as outside counsel in the talc litigation for two years with Beasley Allen and one of its attorneys had violated the state’s rules of professional conduct around nonlawyers association with lawyers and a lawyer’s duty to former clients.”
• “Chazen, as counsel for the plaintiffs in the Sky Zone injury cases and as an intervenor in the appeal, asserted in the July brief that the trial court ‘erroneously disqualified’ him based on the J&J decision.”
• “There are contradictions between the J&J disqualification decision and a prior Appellate Division ruling from 2001 regarding professional conduct rules that the state’s high court needs to clear up, Chazen said. The Supreme Court needs to weigh in on whether certain rules have been expanded to include conduct by individuals who were never attorneys, as well as if the J&J ruling should be applied retroactively to conduct before the decision was issued, he said.”
• “‘Resolution of these issues by this Court is necessary so that attorneys and litigants will have clear guidance as to what conduct is permitted under the Rules of Professional Conduct,’ the brief said.”
• “But in an opposition brief filed in July, the Sky Zone-affiliated defendants, including Rockin’ Jump Holdings LLC, argued plaintiffs in the injury cases misapprehended the Superior Court’s disqualification order and misunderstood ‘the underlying legal principles.'”
• “They say there are ‘no inconsistent rulings for which guidance is required,’ as the J&J ruling and the prior decision mentioned by the plaintiffs deal with different conduct and rules of professional conduct.”
• “The Sky Zone defendants assert their disqualification motion relates to ethical concerns that were dealt with in the J&J decision, saying that decision ‘governs disqualification arising from counsel’s association with a conflicted insider whose knowledge of adversary strategy is integrated into litigation efforts.'”
• “‘Plaintiffs’ attempt to conflate these frameworks is legally incorrect and was properly rejected by the trial court,’ they contend.”
• “At issue in the Superior Court’s April disqualification decision was Chazen’s retention of Rollin Gordon, who had been director of safety and risk management for Sky Zone from 2023 to 2024, according to court documents.”
• “In his April ruling, Superior Court Judge Gary K. Wolinetz raised concerns about Chazen’s dealings with Gordon, even though the former Sky Zone employee was barred as an expert by trial courts adjudicating the injury suits that Chazen’s clients filed.”
• “‘Clearly, as Mr. Chazen acknowledged at oral argument before me, he could have taken Gordon’s deposition and, thereafter, secured his own expert,’ Judge Wolinetz said. ‘In doing so, Mr. Chazen could have avoided the conundrum in which he now finds himself.'”
• “But Chazen ‘made a tactical decision to retain Gordon,’ the judge said, and Gordon ‘was in a position to provide confidential information to him’ that he obtained during the time he was employed at Sky Zone and related entities.”
• “‘What precise confidential and/or privileged information Gordon actually provided to Mr. Chazen and its value is not the determinative factor in this motion,’ the judge said.”
• “The judge added: ‘While Gordon was repeatedly barred by courts in this Litigation from serving as an expert witness against Sky Zone, I find that this entire situation is prejudicial to the administration of justice.'”