Standard 1(D) Recusal or Disqualification

1. A judge must recuse himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge is cognizant of a personal bias or prejudice concerning an issue, a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) the judge served as a lawyer in the matter in controversy; (c) a lawyer with whom the judge previously practiced law personally and substantially participated in the matter as a lawyer while associated with the judge; (d) the judge is a material witness in the matter; (e) the judge previously presided over the matter in another court;

(f) the judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent, or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding, or has more than a de minimis interest that could be substantially affected by the proceeding; or (g) the judge, a member of the judge’s family, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; or (iv) is to the judge’s knowledge likely to be a material witness in the proceeding.

2. Unless particular circumstances create a reasonable concern about impartiality, a judge is not disqualified from presiding over a matter merely because the judge is personally involved in a matter of the same general type.

3. A judge must keep informed about the judge’s personal and fiduciary economic interests and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse and minor children residing in the judge’s household.

4. A judge should disclose information that the judge believes the parties or their lawyers might reasonably consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. Although a judge may disclose any information the judge deems appropriate, a judge’s decision not to disclose past professional associations with lawyers or agencies that terminated more than one year prior is presumptively reasonable. Similarly, a judge’s decision not to disclose the identity of past clients that the judge represented, or participated in representing, as a lawyer, when such representation terminated more than three years prior is presumptively reasonable.

5. If a judge, in exercising the judge’s discretion, determines that the judge should not preside over a matter, the judge may recuse himself or herself by so stating, but without stating the basis of the recusal on the record.

6. By decisional law, the rule of necessity may override the rule of disqualification.

7. A lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency; a judge formerly employed by a government agency, however, should recuse himself or herself in a proceeding if the judge’s impartiality might reasonably be questioned because of such association. After one year of separation from the agency, a presumption arises that recusal is not required. See illustration 1(D)(10)(c).

8. The fact that a lawyer in a proceeding is affiliated with a law firm or government agency with which a member of the judge’s family is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that the judge’s impartiality might reasonably be questioned or that the relative is known by the judge to have an interest in the law firm or governmental agency that could be substantially affected by the outcome of the proceeding may require the judge’s recusal.

9. A judge who may be disqualified may ask, or have the clerk of court ask, the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. Written evidence of the agreement is to be incorporated in the record of the proceeding. Should any party or lawyer choose not to waive disqualification, the identity of that party or lawyer is not to be communicated to the judge.

10. The following illustrations are examples of appropriate application of recusal or disqualification standards:

(a) A judge may preside over traffic cases while the judge has a pending traffic infraction. In addition, a judge may preside over domestic relations matters during the pendency of the judge’s divorce.

(b) As an example of application of the rule of necessity, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In the latter case, the judge must disclose the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable.

(c) As an example of disclosure and possible recusal required for a judge who recently has left the employ of a government agency, including, e.g., a Commonwealth’s Attorney office: during the first year immediately following departure from the agency, a judge should disclose his or her prior association with the agency whenever the agency or its attorney is appearing before the judge. After one year of separation from the agency, disclosure of the prior employment would no longer be required although the judge, in his or her discretion, could make such disclosure if the judge deemed it appropriate.