Risk Update

Conflicts Considerations — Judicial Disqualification Clarification (Ethics Opinion), DA Personal and Political Comments Lead to Public Controversy

Posted Dan Bressler

“Judicial Ethics Opinion 22-29” —

  • “The Advisory Committee on Judicial Ethics responds to written inquiries from New York state’s approximately 3,600 judges and justices, as well as hundreds of judicial hearing officers, support magistrates, court attorney-referees, and judicial candidates (both judges and non-judges seeking election to judicial office)”
  • “A full-time judge may preside over cases involving an insurance company for which the judge had previously served as in-house counsel once two years have elapsed since the end of the relationship or the final payment of any fees to the judge, whichever is later, provided the judge had no involvement in the case before them as counsel.”
  • “The inquiring full-time judge, prior to taking the bench, worked for a law firm that served exclusively as in-house counsel to an insurance company. Approximately three years ago, the judge left that law firm and ceased handling any cases involving that insurance company. All business and financial connections between the judge and the law firm terminated at that time, and the judge has no retirement/pension plan with them. The judge asks if they may preside in cases involving the insurance company.”
  • “Applying these principles here, it appears that the attorney-client relationship between the inquiring judge and the insurance company completely ended approximately three years ago, as did the business/financial relationship between the judge and the law firm that served as in-house counsel to the insurance company. Accordingly, since more than two years have elapsed since the end of the judge’s attorney-client relationship with the insurance company and the final payment of any legal fees, the judge may now preside in cases involving the insurance company, provided the judge had no involvement in the matter as an attorney.”

“Court agrees to remove San Luis Obispo D.A. from case over Black Lives Matter comments” —

  • “On the same day San Luis Obispo County District Attorney Dan Dow began filing charges against marchers protesting the killing of George Floyd by police in Minneapolis, Dow met on Facebook with a group that described the Black Lives Matter movement as ‘domestic terrorism.'”
  • “Also on that day, Dow and his wife asked supporters to contribute to his re-election campaign ‘so he can keep leading the fight in SLO County against the wacky defund the police movement and anarchist groups that are trying to undermine the rule of law and public safety in our community.'”
  • “A state appeals court says those and other comments justified disqualifying Dow and his office as prosecutors of the protest marchers, and turning the case over to the state attorney general’s office.”
  • “The district attorney did not surrender his rights of free speech and freedom of association when he took office, but his exercise of those rights ‘cannot deprive those he prosecutes of their own right to a fundamentally fair trial,’ said the Second District Court of Appeal in Ventura, in a ruling published Wednesday as a precedent for future cases.”
  • “Dow sought to remain on the case, and said the comments created, at most, an appearance of a conflict of interest. Attorney General Rob Bonta’s office supported him. But Superior Court Judge Matthew Guerrero said the evidence supported the protesters’ claims of political motivation, and the appeals court upheld his decision.”