Risk Update

Judicial Disqualifications — Strategic and Tactical Considerations, Judge Shopping

Posted Dan Bressler

“SMART COMMUNICATIONS, HOLDING, INC. v. GLOBAL TEL-LINK CORPORATION” —

  • “Before the court is Plaintiffs’ motion to disqualify the Mette Evans and Woodside Law Firm as counsel for the York County Defendants, and to reassign this and the related patent case1 to District Court Judge Christopher C. Conner, who was formerly presiding over both actions until he recused. (Doc. 23.) For the following reasons, the court will grant Plaintiffs’ motion to disqualify counsel, but deny Plaintiffs’ motion to reassign these cases.”
  • “On November 3, 2021, two attorneys from Mette Evans and Woodside (“MEW”) entered their appearances on behalf of York County, YCP, and Mr. Ogle (collectively, ‘the York Defendants’) in this action. (Docs. 14, 18.) The next day, Judge Conner entered an order in this case stating that because an attorney from MEW entered an appearance and the law firm was listed on his conflict list,3 he would recuse. (Doc. 19.) The order further stated that because the patent case was related to the instant case and that reassignment of both would further the interests of justice and judicial economy, that he was likewise recusing himself from the patent case. (Id.) Both cases were reassigned to the undersigned in accordance with the court’s assignment policy.”
  • “The Third Circuit Court of Appeals has not established the standard to apply when deciding whether to disqualify an attorney whose appearance has resulted or will result in a judge’s recusal. Other circuits have considered the question and held that disqualification may be warranted based upon consideration of certain circumstances. See, e.g., In re BellSouth Corp., 334 F.3d 914, 962-65 (11th Cir. 2003) (applying the factors test set forth in Robinson v. Boeing Co., 79 F.3d 1053 (11th Cir. 1996) even though the disputed attorney’s appearance occurred at the outset of the case rather than interrupting it after substantial judicial investment);”
  • “Potential for Manipulation and Impropriety. This last factor is elusive, but important in the analysis of the instant motion to disqualify… As discussed above, judge shopping and manipulating the random assignment of judges constitutes a threat to the orderly administration of justice. Litigants should not be permitted to utilize disqualification of a judge as a trial strategy. McCuin, 714 F.2d at 1258. Furthermore, there is a concern that judge-shopping could ‘become an additional and potent tactical weapon in the skilled practitioner’s arsenal.’ Selkridge, 360 F.3d at 168.”

“Judicial Ethics Opinion 21-171” —

  • “After the inquiring judge told their administrative or supervising judge (AJ/SJ) about a law firm’s attempted ex parte communication, the law firm started making complaints about the inquirer to the AJ/SJ.”
  • “Although the inquiring judge states that some or all of the law firm’s claims are clearly contradicted by documentary evidence, the AJ/SJ has issued an administrative order assigning the law firm’s cases elsewhere and has declined the judge’s recent request to discontinue it. The judge now asks about potential disqualification and/or disciplinary obligations the judge may have with respect to the law firm.”
  • “The judge first asks, ‘if the administrative order is lifted, should I consider recusing myself on all cases with this specific firm?'”
  • “We cannot answer questions that will be subject to multiple factual variations (see e.g. Opinions 16-85; 15-137). Here, the question is too hypothetical and speculative because neither we nor the inquiring judge can know what circumstances will exist if the administrative order is discontinued. We must therefore decline to respond (see Opinions 17-140; 19-63).”
  • “Finally, the judge asks if they must ‘report this attorney’s ongoing untrue complaints and ex parte discussions with another judge.'”
  • “With respect to the alleged misconduct of the law firm or its attorney(s), on the facts presented, we believe it is entirely in the inquiring judge’s discretion to determine if the judge has information indicating a ‘substantial likelihood’ a lawyer committed a ‘substantial violation’ of the Rules of Professional Conduct (22 NYCRR 100.3[D][2]). [1] Unless the judge concludes both prongs are met, the judge need not take any action at all with respect to the alleged misconduct.”
  • “Conversely, if the judge concludes both prongs are met, the judge must take “appropriate action” (id.). The question of what action, if any, is appropriate under the circumstances is likewise left to the sole discretion of the inquiring judge (see Opinions 19-57; 16-159).”