Risk Update

Judicial Conflicts — When Amicus Briefs Create Conflicts Considerations & Other Judicial Demonstrations

Does a Judge have to recuse if a conflicted party files an amicus brief? Or should the brief be struck?” —

  • “As a general matter, federal judges will recuse if they have some sort of relationship with one of the named parties. Indeed, most clerks will screen cases, to avoid assigning a matter to a judge that would create a potential recusal. Occasionally, conflicted cases slip through the cracks–even at the Supreme Court. Sometimes the identity of all parties isn’t obvious, and a conflict only becomes clear after the case is assigned. But what happens when the conflict arises based on an amicus brief? Friends of the court may file briefs long after the panels are assigned. And these filings may give rise to conflicts of interest. What should a court do in such a case?”
  • “In 2018, the Federal Rules of Appellate Procedure were amended to address this situation. Rule 29(a)(2) provides:
    • ‘Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing, but a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.'”
  • “In short, if an amicus brief would create a recusal, the court can strike it.”
  • “Judge Andrew Brasher, a new member of the Eleventh Circuit chose a different approach. Today he recused from en banc consideration of Florida’s felon disenfranchise case. There was no conflict with any of the parties. Rather, he identified a conflict because the Alabama Attorney General, his former employer, filed an amicus brief.”
  • “As an ethical matter, I think it better for the judge to step down than to strike the unwitting amicus brief. FRAP 29(a)(2) permits that resolution, but it is eminently unfair to the parties. Put yourselves in the shoes of the attorney who spent time and money writing a brief, only for it to be invalidated. However, this practice sends a clear signal to the market: clients who agree with Judge Ho’s general jurisprudence may be hesitant to hire Gibson Dunn to file an amicus brief for the Fifth Circuit, lest their brief force a recusal.”

Panel: Judges may attend demonstrations, must monitor participation” —

  • “Judges are not required to remain silent on turbulent issues, such as racial justice and police killings. But a California judicial ethics panel had some advice Wednesday for any judges who may be considering attending a protest demonstration or a similar political event: Don’t go, unless you’re sure it won’t raise questions about your impartiality.”
  • “Judges and judicial candidates ‘are not required to surrender their rights or opinions as citizens,’ the state Supreme Court’s Committee on Judicial Ethics Opinions said, quoting from California’s ethical standards for judges. ‘They shall, however, not engage in political activity that may create the appearance of political bias or impropriety.'”
  • “And in an era of social media, the committee said, ‘judges should always assume that their attendance will be known and that their conduct may be subject to comment and reporting.'”
  • “That development may help to explain past ethical advisory opinions that allowed some California judges to attend the massive Women’s March held in numerous cities on the day after President Trump’s inauguration in January 2017. Organizers described the event in advance as peaceful and nonpartisan, and, according to the ethical opinions, participants in the march could maintain their public impartiality as long as they did not identify themselves as judges.”