Risk Update

Ethics Updates — Judge Refuses Recusal Over Past Work with Counsel, Judge Ignores Ethics Recusal Opinion (the Obvious Follows), Draft Bar Opinion Allowing Lawyer-Expert Witness Testimony Adverse to Former Clients

Posted Dan Bressler

David Kluft with another find: “If a judge is given an advisory opinion telling him to recuse, can he pretend there was no opinion and stay on the case?” —

  • “A NY judge running for reelection was assigned a case being litigated by a member of his campaign committee, whose firm was holding fundraisers for the judge.”
  • “Opposing counsel asked that the judge recuse. The judge contacted the Advisory Committee on Judicial Ethics, and the Committee issued an opinion telling him he was disqualified.”
  • “The judge concealed the opinion and stayed on the case through the election. After he was re-elected, he revealed the opinion to the parties and declined to recuse anyway.”
  • “Opposing counsel appealed and, of course, the Appellate Division reversed and remanded the case to a new judge. Public censure from the Commission on Judicial Conduct.”
  • Ruling: here.

Actually, it’s a Double Kluft day, as he’s spotting all the interesting needles out there: “Can a lawyer testify as an expert witness in matters adverse to former clients?” —

  • “A proposed CA ethics opinion would allow a lawyer ethically to testify as an expert adverse to a former client if it does not harm the client with regard to the matter in which the lawyer represented them; and if the lawyer does not disclose or use confidential information.”
  • “Similarly, no ethical principal prevents a lawyer from representing a party after testifying against them as an expert (provided there is otherwise no conflict). Public comments to the proposed opinion are due August 18, 2025.”
  • Read more and submit comments to the State Bar: here.

“Judge Won’t Recuse Over Past Work With DraftKings Counsel” —

  • “A California federal judge presiding over a proposed class action against DraftKings regarding its fantasy sports games offerings rejected a request from the plaintiffs to recuse himself over concerns that an attorney for the defense has ties to the court.”
  • “U.S. District Judge Charles R. Breyer acknowledged in his single-page Thursday order that Richard Patch of Coblentz Patch Duffy & Bass LLP was formerly a law partner of the court more than 25 years ago. The court has also hired the Coblentz Patch law firm in the past to do estate work.”
  • “‘That said, the court does not automatically recuse in matters where Coblentz appears before the court, and there being nothing particular about this case that would warrant recusal, the court declines to recuse,’ Judge Breyer said.”
  • “A trio of DraftKings customers filed a proposed class action accusing the sports betting operator of fraudulent behavior, saying its daily fantasy sports games and other contests circumvent California’s ban on sports betting.”
  • “Fantasy wagers are no different from traditional proposition betting because they cannot control the outcome, the June 1 complaint filed by California residents Brandon Moore, ZhiCheng Zhen and Jonathan Smith said. Combined, the men have lost thousands of dollars on the betting app since May 2019, they claimed, saying they believed they were placing legal wagers.”
  • “The plaintiffs recently filed with the court the July 3 official opinion of California Attorney General Rob Bonta saying that daily fantasy sports games violate the state’s penal code because they involve betting on sports, which is prohibited in the Golden State.”
  • “In November 2022, California voters rejected two measures that would have legalized sports betting in the state. Proposition 27 would have legalized online sports betting for companies that could pay a hefty licensing fee and partner with a tribe. Proposition 26 would have opened the door for in-person sports betting at tribal casinos and a handful of racetracks across California.”