Risk Update

Ethics & Conflicts At Bat — Baseball “Side-switch” Inspires Conflicts Consideration, Revised Judicial Conflicts Recusal Opinion

Posted Dan Bressler

Retired litigator Marcel Strigberger opines: “Conflicts of interest: Are lawyers held to too high a standard? Let’s talk about baseball.” —

  • “Former Blue Jays catcher Danny Janson made major league baseball history this week by being the only major”league player to play for both teams in the same ball game. Yes, you read right.”
  • “Janson was up at bat in the second inning against the Boston Red Sox at Fenway Park in Boston back on June 26, 2024, when it started raining and officials decided to suspend the game and resume it on Aug. 26. Meanwhile, Janson got traded to the Red Sox, and on Aug. 26, he was in their lineup playing against his former team. As this game was officially a resumption of the June game, his name was listed on the Jays roster. However, when it came time for him to bat for the Jays, he would have had a bit of difficulty given that he was now wearing a Red Sox uniform. Another Jay, Daulton Varshow, did the official pinch hit for Janson, who now took up his position as the Rex Sox catcher.”
  • “As a lawyer, the first thing that jumped into my mind was the issue of conflict of interest. Lawyers have no wiggle room at all in this area.”
  • “Is it time for the law to be relaxed somewhat and soften this stringent prohibition? Looking at baseball, I would say the game has many helpful philosophical connotations. It can teach us many lessons. Oodles of baseball expressions have already found their way into the legal vernacular.”
  • “Can we allow some conflict of interest in practice? It would certainly be interesting say if a lawyer is a Crown attorney prosecuting a criminal in the earlier stages of the case and this Crown leaves his prosecution job, becomes a defence counsel and meets up with the accused who then retains them to complete the case.”
  • “The accused certainly might not have issues with this. Nor might the prosecution. The prosecutors are so busy, do they really care which defence counsel steps up to the plate? And the good thing is the switching lawyer, unlike Danny Janson, come trial time would not even have to get a new uniform. Same robe. Said lawyer would just have to make sure they only complete one counsel slip. Otherwise, they would look like pooh-bah.”
  • “Will the system relax the rules a bit? The legal world is a bit conservative. Maybe it’ll think about it for now. Blue sky it. Take a rain check.”

“Revised ethics opinion: Judges should disclose prior prosecutions but assess recusal individually” —

  • “A judge is not required to automatically recuse themselves from all cases involving defendants they previously prosecuted. Instead, the judge must assess each case individually to determine if recusal is necessary, taking into account the specific circumstances of the case, according to the [Florida] Judicial Ethics Advisory Committee.”
  • “‘Additionally, if a judge is aware of his or her involvement in a prior prosecution, the judge must disclose the relevant facts to the defendant even if the facts do not require automatic recusal,’ the ethics panel said in Opinion Number 2024-12 (Amended).”
  • “The amended opinion issued August 27, recedes from the original version issued August 2 that opined that judges must recuse from all cases involving defendants whom the judge previously prosecuted.”
  • “‘The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired,’ the ethics panel said citing commentary to Canon 2A. ‘Additionally, the Commentary to Canon 3(E)(1) states clearly that, ‘…a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.'”
  • “The panel said the inquiring judge may need to recuse from a case but must evaluate each case individually…The rules require that the inquiring judge disqualify himself or herself where his or her impartiality might reasonably be questioned.”
  • “The committee noted that one JEAC member expressed an opposing view and believes that a former prosecution by the judge would always call into question the judge’s impartiality. That committee member prefers the ‘bright line’ position that a judge must recuse from all cases involving a defendant who the judge previously prosecuted.”