Risk Update

Judicial DQ Analysis — Time to More Strenuously and Consistently Search and Consider Judges’ Conflicts?

Deborah A. Winokur, counsel at Cozen O’Connor has an excellent article out which reminds us: “Attys Should Note Judges’ Financial Conflicts Of Interest” —

  • “Given these recent developments, what steps should attorneys practicing in the federal courts consider?”
  • “First, be proactive in your Rule 7.1 disclosures, so that a judge has a clear understanding of the corporate structure of your client, including its immediate parent, and the ultimate parent corporation. As Judge Erickson wrote in his email to the policymakers, ‘[i]t seems to me that more information rather than less is prudent in today’s environment.'”
  • “Second, do not assume that a judge’s order against the party with which the judge has the financial interest removes the risk of prejudice. Centripetal unsuccessfully argued that Judge Morgan should not be disqualified because he ruled against Cisco, thereby demonstrating his impartiality.”
  • “But the appeals court found that ‘[w]here a judge becomes aware of a possible appearance of impropriety, there is a substantial risk that he or she might bend over backwards to rule against that party to try to prove that there is no bias.'”
  • “Third, remember that use of a blind trust is not the same as a divestment under the Disqualification Statute. Per Subsection (f), if a judge presiding over a matter for a substantial amount of time later learns that either the judge or a member of the judge’s household has a financial interest in a party, the conflict may be cured if the judge divests himself or herself of that interest.”
  • “A lawyer relying on a judge’s representation that the conflict has been resolved because the judge put the contested security in a blind trust may find that the judge will be removed on appeal, and any findings or judgment may be remanded and relitigated.”
  • “Fourth, run the names of your client and the other parties involved in the litigation through the publicly available databases at the outset, to independently determine if the judge may have a financial conflict of interest. Promptly bring any issues you identify to the attention of the judge and the other litigants.