Appearance of Impropriety: Deciding When a Judge's Impartiality 'Might Reasonably Be Questioned'

Abstract

This Article calls for both the ABA and the states to review their Codes of Judicial Conduct in order to: (1) add ethical duties not currently addressed, such as a black-letter judicial duty to disclose any known disqualifying circumstances to counsel and parties; (2) broaden existing duties like the judge's duty to inform himself or herself about personal and family financial holdings; and (3) consider new disqualifying conditions to reclassify general appearance of partiality situations as specific per se grounds for recusal.

Part I examines the Codes' standards relating to the appearance of impropriety, the accompanying Code commentary, waiver of disqualifying situations, and a comparison with attorneys' ethics rules about the appearance issue. Part II looks at judicial approaches to the appearance of impropriety, including its rationale, judicial disclosure of possible grounds for the existence of a negative appearance, the presumption of impartiality and the reasonable person standard by which appearances are measured, and whether an ethical violation for negative appearances requires a remedy such as a new trial or is merely harmless error. Part III studies the state court case law in nine factual contexts where the appearance of impropriety is often raised and discusses standards and criteria for each that should be added to the ABA Codes and commentary to assist judges, lawyers, and lay members of judicial conduct organizations in evaluating judicial disqualification or discipline.

Keywords: ethics, standards, code of judicial conduct

JEL Classification: K4, K00