In Re: v. Cargill, Inc. ( 1995 )


Menu:
  • USCA1 Opinion








    UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

    _________________________


    No. 94-8042




    IN RE

    CARGILL, INC.,

    Petitioner.

    _________________________

    ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES

    DISTRICT COURT FOR THE DISTRICT OF MAINE

    _________________________

    Before

    Selya, Circuit Judge, _____________

    Campbell, Senior Circuit Judge, ____________________

    and Boudin, Circuit Judge. _____________

    _________________________

    Bernhardt K. Wruble, with whom William R. Sherman, Verner, ____________________ ___________________ _______
    Liipfert, Bernhard, McPherson and Hand, Peter J. DeTroy, III and ______________________________________ ____________________
    Norman, Hanson & DeTroy were on brief, for petitioner. _______________________
    Joel C. Martin, with whom Michael K. Martin, Daniel W. Bates ______________ _________________ _______________
    and Petruccelli & Martin were on brief, for plaintiffs. ____________________

    _________________________

    October 10, 1995

    _________________________




















    SELYA, Circuit Judge. Petitioner, Cargill, Inc. SELYA, Circuit Judge. ______________

    (Cargill), seeks a writ of mandamus directing a judge of the

    United States District Court for the District of Maine to

    withdraw a decision previously issued and then to recuse himself

    from further proceedings in the underlying cause.1 For the

    reasons that follow, we decline to issue a prerogative writ.

    I. BACKGROUND I. BACKGROUND

    The petition arises out of a civil action brought by

    several former Cargill employees, represented by Daniel W. Bates

    and Kenneth D. Keating of Petruccelli & Martin (P&M), an eight-

    lawyer firm in Portland, Maine. The complaint invokes the

    Robinson-Patman Act, 15 U.S.C. 13-13b (1988), and alleges in

    substance that Cargill discharged the plaintiffs in retaliation

    for their unwillingness to abide certain predatory pricing

    practices. Cargill retained a Washington-based firm, Verner,

    Liipfert, Bernhard, McPherson, and Hand (Verner, Liipfert), as

    lead counsel, and a Portland firm, Pierce, Atwood, Scribner,

    Allen, Smith, and Lancaster (Pierce, Atwood), as local counsel.

    It then moved to dismiss on the basis that the plaintiffs

    experienced no antitrust injury and, therefore, lacked standing

    ____________________

    1Petitioner premises his argument on the ground that the
    judge's impartiality might reasonably be questioned. The
    relevant statute provides:

    Any justice, judge, or magistrate of the
    United States shall disqualify himself in any
    proceeding in which his impartiality might
    reasonably be questioned.

    28 U.S.C. 455(a) (1988).

    2












    to maintain the action.

    On December 19, 1993, while Cargill's motion was

    pending before him, the district judge to whom the case had been

    randomly assigned became embroiled in what he subsequently

    described as a "minor controversy" relating to his efforts, and

    those of his wife, to purchase a new home. The judge telephoned

    Gerald Petruccelli, a principal partner in P&M, and sought his

    advice anent the real estate dispute. Petruccelli agreed to the

    proposed representation, telling the judge that he (Petruccelli)

    knew of "no impediment" to the relationship.

    On December 21, the two men met for about 50 minutes

    and discussed the judge's real estate problem. A series of

    telephone conversations followed over the course of the next

    eight days. None lasted more than five minutes. Petruccelli

    dealt directly with the lawyer who represented the other side in

    the real estate matter and, on January 6, 1994, he resolved the

    imbroglio to the judge's satisfaction. Petruccelli rendered a

    bill, dated January 7, based on his standard hourly rate. The

    judge paid the invoice within the week. It is undisputed that

    Petruccelli never represented the judge in any other matter and

    that the judge dealt only with Petruccelli (not with any other

    P&M attorney).

    The judge maintains that, at the time he engaged

    counsel, he had "no conscious awareness that Mr. Petruccelli or

    his firm were involved in this specific litigation then pending"




    3












    before him.2 Nonetheless, a few days after he had retained

    Petruccelli, the judge asked his docket clerk to check his

    calendar for pending cases in which P&M might have appeared. The

    clerk brought two such cases to the judge's attention at about

    the time that the attorney-client relationship ended. One of

    these was the case against Cargill. Although Petruccelli himself

    had played no role in P&M's representation of the plaintiffs, the

    judge decided that he had best disclose his dealings with

    Petruccelli.

    On January 11, the clerk, acting at the judge's

    direction, notified local counsel to attend a conference on the

    following day. The disclosure conference (a transcript of which

    comprises the appendix) proved to be brief. Attorneys Bates and

    Keating appeared for the plaintiffs, and Attorneys O'Leary and

    Einsiedler (both of Pierce, Atwood) appeared for Cargill. When

    advised of the attorney-client relationship between Petruccelli

    and the judge, both Bates and O'Leary quickly volunteered that

    their respective clients had no objection to the judge's

    continued participation in the case. The judge then advised the

    lawyers that he was grappling with Cargill's motion to dismiss

    which, in his view, "raise[d] some very interesting and difficult

    questions." He forecast that he would hand down a decision
    ____________________

    2This declaration, and other declarations reflecting the
    judge's state of mind, are extracted from the record of a
    conference held in this case (reprinted in the appendix), from
    the judge's notice to counsel (described infra), and from the _____
    order denying Cargill's recusal motion. For the most part,
    petitioner has not challenged the factual accuracy of the judge's
    statements.

    4












    "within a week or so."

    Precisely one week thereafter, the judge issued a 39-

    page rescript denying Cargill's motion to dismiss. While the

    judge closed his chambers and released his staff on holiday leave

    from December 24, 1993 through January 3, 1994, he admittedly

    labored over the matter during some portion of the period when

    Petruccelli represented him.

    The filing of the opinion elicited no immediate

    response. Several weeks later, however, Bernhardt Wruble, a

    Verner, Liipfert partner, wrote a letter to the court asserting

    that, because "a judge's contemporaneous representation by

    opposing counsel is uniformly regarded as a basis for obligatory

    disqualification," the judge should withdraw his order denying

    the motion to dismiss, relieve himself of all responsibility for

    the case, and reassign it to another jurist. Anticipating the

    predictable reaction to this demand, Wruble suggested that

    Pierce, Atwood's acquiescence was of no moment. Since local

    counsel lacked prior notice of the purpose of the January 12

    conference and, hence, had no opportunity to consult in advance

    with either the client or lead counsel, Wruble wrote, the judge

    had not afforded petitioner "adequate time for a considered

    response" to the disclosure. Thus, there could be no "effective"

    waiver.

    The judge did no fewer than three things upon receiving

    Wruble's communique. First, he postponed a scheduled status

    conference in the case. Second, he directed any party who sought


    5












    his recusal to file a formal motion to that effect. Third, he

    composed and served a statement, denominated as a notice to

    counsel, in which he denied "that the Court required a decision

    on waiver of any objection to the Court's continued participation

    to be made at the conference." The judge explained that he meant

    the disclosure conference to be informational in nature, that is,

    "to advise counsel of the circumstances of Mr. Petruccelli's

    representation and afford counsel an opportunity to confer with

    clients and other counsel to decide whether they wanted to move

    for recusal or request other action by the court." But, wrote

    the judge, though he intended to give counsel a full month in

    which to advise him of their clients' positions with respect to

    the disclosed matter and, with this in mind, thought it

    sensible to summon only local counsel to the disclosure

    conference he did not do so because, immediately following his

    revelation, both counsel, acting for their respective clients,

    spontaneously disclaimed any objection to his continued

    participation in the case.

    On February 25, 1994, Cargill asked the district court

    to certify for interlocutory appeal the January 19 order denying

    the motion to dismiss. See 28 U.S.C. 1292(b) (1988).3 ___

    Roughly two weeks later, Cargill moved for recusal, proffering

    several affidavits. Cargill's motion, like Wruble's letter of

    February 13, made it clear that Cargill's position rested on a
    ____________________

    3The district court eventually denied this motion.
    Petitioner does not assign error to the denial, nor could it
    rewardingly do so.

    6












    supposed appearance of impropriety, that is, the existence of

    circumstances in which Cargill believed that the judge's

    impartiality might reasonably be questioned. See 28 U.S.C. ___

    455(a), quoted supra note 1. Cargill did not advance, then or _____

    now, any claim of actual bias. The plaintiffs opposed the

    recusal motion. In their opposition, they made two principal

    arguments: (1) Petruccelli's representation did not create an

    appearance of impropriety within the meaning of 28 U.S.C.

    455(a), and, in any event, (2) Cargill had waived any objection

    to the judge's continuing role in the case. The plaintiffs

    hinged the latter contention on 28 U.S.C. 455(e), a statute

    that specifically permits a judge to accept the parties' waiver

    of a section 455(a) appearance-of-impropriety ground for

    disqualification as long as the waiver "is preceded by a full

    disclosure on the record of the basis for disqualification."

    On May 12, 1994, the district court denied the recusal

    motion. Cargill subsequently filed its mandamus petition in this

    court. We invited the plaintiffs to respond, set a briefing

    schedule, and entertained oral argument.

    II. THE NATURE OF MANDAMUS II. THE NATURE OF MANDAMUS

    Federal appellate courts are empowered to issue

    prerogative writs that are "necessary or appropriate in aid of

    their respective jurisdictions" under the All Writs Act, 28

    U.S.C. 1651(a) (1988). Because such writs disrupt the

    mechanics of the judicial system by accelerating appellate

    intervention, prerogative writs foster piecemeal review and


    7












    disturb the historic relationship between trial and appellate

    courts they should "be used stintingly and brought to bear only

    in extraordinary situations." Doughty v. Underwriters at _______ ________________

    Lloyd's, London, 6 F.3d 856, 865 (1st Cir. 1993). Mandamus is ________________

    such a writ. It is strong medicine, and should neither be

    prescribed casually nor dispensed freely.

    Consistent with these principles, the standards for

    issuance of the writ are high. A petitioner seeking mandamus

    must show both that there is a clear entitlement to the relief

    requested, and that irreparable harm will likely occur if the

    writ is withheld. See United States v. Horn, 29 F.3d 754, 769 ___ ______________ ____

    (1st Cir. 1994); Doughty, 6 F.3d at 866; In re Pearson, 990 F.2d _______ _____________

    653, 657 & n.4 (1st Cir. 1993). Sometimes, even these specific

    showings are not enough to justify a court's use of its mandamus

    power. In the final analysis, a writ of mandamus is an

    exceptional remedy and "is to be granted only in the exercise of

    sound discretion." Whitehouse v. Illinois Cent. R. Co., 349 U.S. __________ _____________________

    366, 373 (1955). In this context, equity informs the court's

    discretion. See Kerr v. United States Dist. Court, 426 U.S. 394, ___ ____ _________________________

    403 (1976); United States v. Helvering, 301 U.S. 540, 543 (1937); _____________ _________

    United States v. Dern, 289 U.S. 352, 359 (1933); Doughty, 6 F.3d _____________ ____ _______

    at 866; United States v. Patterson, 882 F.2d 595, 600 (1st Cir. _____________ _________

    1989), cert. denied, 493 U.S. 1027 (1990); In re First Fed. Sav. _____ ______ ______________________

    & Loan Ass'n, 860 F.2d 135, 139-40 (4th Cir. 1988); Vishnevsky v. ____________ __________

    United States, 581 F.2d 1249, 1255 (7th Cir. 1978). _____________

    We have held that, in an appropriate case, an issue of


    8












    judicial disqualification may present a sufficiently

    extraordinary situation to justify the unsheathing of our

    mandamus power. See In re Allied-Signal, Inc., 891 F.2d 967, 969 ___ _________________________

    (1st Cir. 1989), cert. denied, 495 U.S. 957 (1990); In re Cooper, _____ ______ ____________

    821 F.2d 833, 834 (1st Cir. 1987); In re United States, 666 F.2d ___________________

    690, 694 (1st Cir. 1981); see also In re International Business ___ ____ _____________________________

    Mach. Corp., 618 F.2d 923, 927 (2d Cir. 1980). However, the ___________

    usual prerequisites to mandamus relief a showing of both clear

    entitlement to the requested relief and irreparable harm without

    it, accompanied by a favorable balance of the equities do not

    vanish merely because judicial disqualification is the business

    of the day. See, e.g., Allied-Signal, 891 F.2d at 969; Cooper, ___ ____ _____________ ______

    821 F.2d at 834; In re United States, 666 F.2d at 694. In other ___________________

    words, the mere fact that a petition for mandamus is directed at

    securing the trial judge's removal does not ensure that the

    higher court will entertain the petition.

    III. DISCUSSION III. DISCUSSION

    After careful perscrutation of the record, we conclude

    that petitioner's quest for mandamus should go unrequited.

    Cargill has shown neither that it is clearly and indisputably

    entitled to the writ nor that it faces an intolerable risk of

    irreparable harm should it be forced to await appellate review in

    the ordinary course. Moreover, Cargill's failure to take timely

    action, after learning of the judge's disclosure and Maine

    counsel's ensuing waiver of objection, tips the equitable balance

    and argues persuasively against issuance of the writ.


    9












    A A

    We turn first to the matter of entitlement to the

    relief requested. Assuming, arguendo, that the judge's ________

    relationship with Petruccelli created an appearance of

    impropriety adequate to animate section 455(a) and we think

    that it probably did4 Cargill's entitlement to an order of

    disqualification remains questionable. Regardless of whether the

    actions of its local counsel effected a fully valid waiver of the

    disqualifying circumstance, the silence of Cargill and its lead

    counsel after learning what had transpired may very well have

    added the missing element, ratified the waiver, and given it

    life. We elucidate below.

    The relevant statute, 28 U.S.C. 455(e), plainly

    contemplates that a party may waive an appearance-of-impropriety

    ground for disqualification. The statute itself does not define

    ____________________

    4The disqualification requirement of section 455(a) is
    triggered, despite the lack of any actual bias on the judge's
    part, if a reasonable person, knowing all the circumstances,
    would question the judge's impartiality. See Liljeberg v. Health ___ _________ ______
    Servs. Acquisition Corp., 486 U.S. 847, 861-62 (1988). Most _________________________
    observers would agree that a judge should not hear a case argued
    by an attorney who, at the same time, is representing the judge
    in a personal matter. See 13A Charles Wright & Arthur Miller, ___
    Federal Practice and Procedure 1349, at 614 (1984) (citing ________________________________
    cases). Although the appearance of partiality is attenuated when
    the lawyer appearing before the judge is a member of the same law
    firm as the judge's personal counsel, but not the same
    individual, many of the same cautionary factors are still in
    play. See, e.g., 2 Administrative Office of the U.S. Courts, ___ ____
    Guide to Judiciary Policies and Procedures V-32 (1995) __________________________________________________
    (expressing the view that "where an attorney-client relationship
    exists between the judge and the lawyer whose law firm appears in
    the case, the judge should recuse absent remittal"). This
    principle would seem to have particular force where, as here, the
    law firm is small and the judge's lawyer is a name partner.

    10












    the form or prerequisites of such a waiver; it only imposes the

    condition that the waiver be "preceded by a full disclosure on

    the record of the basis for disqualification." 28 U.S.C.

    455(e). The transcript of the January 12 conference leaves no

    doubt that such a disclosure occurred. The judge laid out the

    nature of his relationship with Petruccelli, citing book and

    verse. This disclosure was then followed by an unequivocal

    statement on the part of Cargill's counsel, unprompted by the

    court, to the effect that Cargill did not object to the judge's

    continued service in the case. Local counsel reported these

    developments to lead counsel immediately after the conference

    ended, and Verner, Liipfert in turn promptly informed the client.

    Yet, for nearly a month thereafter, Cargill failed to express any

    discomfiture with the waiver.

    Although we leave the ultimate question open for

    resolution on an end-of-case appeal, we think that local

    counsel's unqualified assent, combined with Cargill's subsequent

    silence for a substantial period of time, creates a sturdy

    foundation on which the validity of the waiver might rest, and

    that the resultant uncertainty undercuts Cargill's claim that it

    is plainly entitled to the requested relief. After all, it is

    common ground that civil litigants ordinarily are bound by their

    attorneys' tactical judgments, see, e.g., Brody v. President & ___ ____ _____ ___________

    Fellows of Harvard Coll., 664 F.2d 10, 12 (1st Cir. 1981) ___________________________

    (holding, on particular facts, that client would not be allowed

    "to second guess his attorney's waiver"), cert. denied, 455 U.S. _____ ______


    11












    1027 (1982), and waivers based on silence are standard fare, see, ___

    e.g., United States v. Nobel, 696 F.2d 231, 237 (3d Cir. 1982) ____ _____________ _____

    (finding waiver under 455(e) based on party's failure to make a

    timely objection once the basis for disqualification was fully

    disclosed), cert. denied, 462 U.S. 1118 (1983). _____ ______

    However, Cargill asseverates that no valid waiver could

    be given by its Maine counsel because the judge failed to follow

    exactly the procedures governing waivers of disqualification

    dictated by the Code of Conduct for United States Judges (CCUSJ),

    adopted by the Judicial Conference of the United States following

    promulgation by the American Bar Association. See CCUSJ, ___

    reprinted in 150 F.R.D. 307 (1992). Canon 3D of the CCUSJ allows _________ __

    a judge to hear a case if the parties and their lawyers agree to

    the judge's continued service not only after disclosure of

    certain bases for disqualification (including appearance of

    impropriety), but also after having been afforded "an opportunity

    to confer outside the presence of the judge[.]" Id. at 313. ___

    Here, what transpired at the disclosure conference met the first

    requirement of Canon 3D, but not the second.

    However, even if we assume arguendo that this ________

    noncompliance rendered the original waiver ineffective,5 counsel
    ____________________

    5Although we need not decide the point, we doubt that every
    instance of noncompliance with the CCUSJ automatically justifies
    post-hoc invalidation of a waiver that otherwise meets the test
    of section 455(e). Certainly, the case law on the point is less
    than transpicuously clear. See, e.g., Nobel, 696 F.2d at 237 ___ ____ _____
    (explaining that "it is sufficient under [section 455(e)] if the
    judge provides full disclosure of his or her relationship at a
    time early enough to form the basis of a timely motion at or
    before trial and under circumstances which avoid any subtle

    12












    thereafter had ample opportunity for consultation with the

    client, outside the presence of the judge, yet Cargill, knowing

    of the stated waiver, did not alter its position. When the

    judge's departure from the CCUSJ is weighed in the balance along

    with his explanation and Cargill's knowing acquiescence in local

    counsel's express waiver, the call seems to us to be quite close.

    This closeness sets a chain reaction in motion. It leads us

    first to conclude that the contested waiver may well be

    enforceable, and constitutes, at the least, a potential stumbling

    block on the road to recusal. The first conclusion leads

    inexorably to a second conclusion: that petitioner has failed in

    its endeavor to demonstrate that it is "clearly and indisputably"

    entitled to the relief that it seeks.

    To be sure, Cargill has attempted to explain away its

    apparent ratification of the position taken by its local counsel

    both factually (through a series of affidavits) and legally

    (through its insistence on literal compliance with Canon 3D).

    Its factual explanations and legal theories may or may not hold

    water in the long run, but that is scarcely the point. We need

    not and do not decide the merits of the waiver question at

    this juncture. It suffices for present purposes merely to note

    ____________________

    coercion"); Haire v. Cook, 229 S.E.2d 436, 438-39 (Ga. 1976) _____ ____
    (similar; construing Georgia law); Commonwealth v. Cagney, 329 ____________ ______
    N.E.2d 778, 781 (Mass. 1975) (Goodman, J., concurring) (similar;
    construing Massachusetts law). Notwithstanding the importance we
    attach to the CCUSJ and the obvious desirability of assuring
    judicial compliance with the canons, we think a strong argument
    can be made that not all instances of noncompliance with the
    CCUSJ are automatic disqualifiers.

    13












    that the issue is sufficiently clouded that petitioner's eventual

    entitlement to the requested redress the district judge's

    recusal is problematic.6 See Pearson, 990 F.2d at 656 & n.4; ___ _______

    Cooper, 821 F.2d at 834. ______

    B B

    Petitioner suggests that recusal of a judge presents a

    special circumstance which, even in the absence of clear

    entitlement to the requested relief, warrants interlocutory

    review by way of mandamus. This suggestion is not without

    force.7 In cases in which parties have sought recusal based on

    assertions of actual bias, we have stated that "the issue of

    judicial disqualification presents an extraordinary situation

    suitable for the exercise of our mandamus jurisdiction." In re _____

    United States, 666 F.2d at 694. _____________

    ____________________

    6Because we find no clear and indisputable entitlement to
    the requested relief, we need not consider whether Cargill
    satisfied the second prong of the mandamus test by a showing of
    irreparable harm. We note, however, that although there is
    always some harm in litigating for nought, that harm repeatedly
    has been held insufficient, in itself, to justify mandamus
    relief. See, e.g., In re Bushkin Assocs., 864 F.2d 241, 243-44 ___ ____ _____________________
    (1st Cir. 1989).

    7In the same vein, however, we can envision cases in which,
    despite a showing that ordinarily would amount to clear
    entitlement, a litigant has acted so deplorably that the
    petitioned court might choose to withhold discretionary relief.
    See generally Precision Instrument Mfg. Co. v. Automotive ___ _________ _______________________________ ____________
    Maintenance Mach. Co., 324 U.S. 806, 814 (1945) (explaining that _____________________
    the doctrine of unclean hands "closes the doors of a court of
    equity to one tainted with inequitableness or bad faith relative
    to the matter in which he seeks relief"); Texaco Puerto Rico, ____________________
    Inc. v. Department of Consumer Affairs, 60 F.3d 867, 880 (1st ____ ________________________________
    Cir. 1995) ("It is old hat that a court called upon to do equity
    should always consider whether the petitioning party has acted in
    bad faith or with unclean hands.").

    14












    Our rationale in these cases has been that "[p]ublic

    confidence in the courts may require that such a question be

    disposed of at the earliest possible opportunity." In re Union ____________

    Leader Corp., 292 F.2d 381, 384 (1st Cir.), cert. denied, 368 ____________ _____ ______

    U.S. 927 (1961). However, we have cautioned that this philosophy

    does not "commit us to entertaining every rejected affidavit of

    prejudice," and we have made it clear that, even when a mandamus

    petition seeks a judge's recusal based on an assertion of actual

    bias, mandamus remains "a discretionary writ." Id. Because its ___

    origins are equitable in nature, the writ should issue to remedy

    a wrong, not to promote one and it should not "be granted in

    aid of those who do not come into court with clean hands."

    United States v. Fisher, 222 U.S. 204, 209 (1911). _____________ ______

    In this case, principles of equity caution against

    exercising discretion to reach out for the disqualification issue

    here and now. To explain why, we must remind the reader that

    mandamus is a potent weapon. Precisely because the writ packs a

    considerable wallop, litigants are sometimes tempted to employ it

    for its strategic value, regardless of the merits of their cause.

    See Allied-Signal, 891 F.2d at 970; In re Drexel Burnham Lambert ___ _____________ ____________________________

    Inc., 861 F.2d 1307, 1312-16 (2d Cir. 1988), cert. denied, 490 ____ _____ ______

    U.S. 1102 (1989). Ignoring this possibility when, as now, a

    petition for mandamus seeks the disqualification of a judge

    shortly after the judge decides a major point against the

    petitioner would be to blink reality. In the real world, recusal

    motions are sometimes driven more by litigation strategies than


    15












    by ethical concerns.

    In such straitened circumstances, appellate tribunals

    must be especially alert to the dangers of manipulation. Courts

    can ill afford to permit mandamus to be used as a tactic to

    jettison an impartial judge whose slant on a case, as evidenced

    by his rulings, jeopardizes a party's chances for ultimate

    success. See In re United Shoe Mach. Corp., 276 F.2d 77, 79 (1st ___ _____________________________

    Cir. 1960) ("We cannot permit a litigant to test the mind of the

    trial judge like a boy testing the temperature of the water in

    the pool with his toe, and if found to his liking, decides to

    take a plunge.") (citation and internal quotation marks omitted);

    cf. Reilly v. United States, 863 F.2d 149, 160 (1st Cir. 1988) ___ ______ ______________

    (explaining that "when a trial judge announces a proposed course

    of action which litigants believe to be erroneous, the parties

    detrimentally affected must act expeditiously to call the error

    to the judge's attention or to cure the defect, not lurk in the

    bushes waiting to ask for another trial when their litigatory

    milk curdles"). By like token, courts cannot afford to spawn a

    public perception that lawyers and litigants will benefit by

    undertaking such machinations.

    This case runs up just such a red flag. While the

    record does not compel a finding that petitioner and its lead

    attorneys delayed any attempt to retract Maine counsel's waiver

    as part of a plot to await the results of the judge's impending

    decision, the chronology is suggestive. The scenario lends

    itself to the following description: Cargill, armed with all the


    16












    relevant facts no later than January 14 and knowing that the

    judge planned to decide the key motion in the case during the

    following week,8 held its "appearance-of-impropriety" and

    "invalid waiver" arguments in reserve, deferred any recusal

    initiative, awaited the ruling on the motion to dismiss, found

    that ruling to be greatly disappointing, and then pulled the

    recusal option off the shelf in hopes of locating a more

    sympathetic trier.

    Of course, Verner, Liipfert tries strenuously to

    explain away this chain of events. The firm's attorneys have

    regaled us with descriptions of both their busy travel schedules

    and the inclement weather that struck the nation's capitol during

    January of 1994. But even if we were to take these excuses at

    face value, they are simply not sufficient to justify the firm's

    decision to sit silently by until the judge had showed his hand.

    We believe it is self-evident that, once Cargill was

    aware of the details surrounding Petruccelli's relationship with

    the judge, it should at a bare minimum have told the court that

    it wanted time to rethink its options and sought a delay in the

    issuance of the court's opinion (which it knew to be imminent).

    In all probability, it would have taken no more than a telephone


    ____________________

    8The various affidavits submitted by the petitioner to the __________________
    district court establish that on Wednesday, January 12, the very
    day that the disclosure conference was held, Pierce, Atwood
    informed Verner, Liipfert of what had transpired, including the
    judge's plan to issue his decision in approximately one week. A
    corporate official was told of the situation no later than
    Friday, January 14.

    17












    call or a facsimile transmission to place matters on hold.9

    Thus, putting the most favorable face on the situation, it is

    apparent that Cargill and its lead counsel neglected to act with

    the immediacy that the circumstances obviously required.

    Our need to exercise discretion also demands that we

    take a related point into account. The case at hand is different

    than our earlier precedents in several respects. First, it does

    not involve a claim of actual bias, and, thus, it lacks one

    important ingredient that in the past often prompted us to

    undertake review of judicial disqualification orders at the

    earliest practicable time. See Union Leader, 292 F.2d at 384. ___ ____________

    When issuing the writ is necessary to promote public confidence

    in the courts by avoiding the unseemly spectacle of trial before

    a biased judge, the need for immediate relief is manifest. See ___

    In re United States, 666 F.2d at 694. These concerns are _____________________

    lessened where, as here, there is neither a trace nor a

    suggestion of actual bias. Second, in this case, the party who

    now claims to be aggrieved earlier had made an express waiver of

    the stated ground for disqualification. This, too, changes the

    calculus of public perception.

    Last, but far from least, petitioner's course of

    conduct whether conniving or merely slipshod influences our

    assessment of the equities. Its handling of the matter places us

    ____________________

    9Cargill suggests that it might have offended the judge by
    taking such action. We think its concerns are overblown:
    lawyers run such a risk every time they seek a judge's recusal.
    In any event, trial advocacy is no sport for the timorous.

    18












    between Scylla and Charybdis: if we do not entertain the

    petition, we run a risk of seeming hesitant to inquire too deeply

    into a possible abuse of judicial power; yet, if we entertain the

    petition despite the appearance of sandbagging that Cargill has

    created, we run a risk of eroding public confidence in the courts

    by seeming to reward a litigant for its gamesmanship.

    Given the fundamental nature of mandamus, declining

    jurisdiction in the exercise of our informed discretion seems

    preferable. Though it might be mere coincidence that the delay

    in seeking to set aside the waiver worked to Cargill's advantage

    by allowing it to see which way the wind was blowing before

    deciding whether to urge recusal, the appearance of judge-

    shopping is sufficiently pronounced that the equities counsel

    restraint. See, e.g., Apple v. Jewish Hosp. & Medical Ctr., 829 ___ ____ _____ ____________________________

    F.2d 326, 334 (2d Cir. 1987) (noting that a "movant may not hold

    back and wait, hedging its bets against the eventual outcome");

    Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1986) ________ _____________

    ("Counsel, knowing the facts claimed to support a 455(a)

    recusal for appearance of partiality may not lie in wait, raising

    the recusal issue only after learning of the court's ruling on

    the merits."), cert. denied, 481 U.S. 1016 (1987). We simply _____ ______

    cannot afford to nourish the impression that the courts, as an

    institution, will bend over backward, overlook the obvious, and

    countenance sharp tactics merely because they are directed at a

    judge.

    IV. CONCLUSION IV. CONCLUSION


    19












    We need go no further. Petitioner has neither met the

    conventional requirements for mandamus relief nor satisfied us

    that, in the unique circumstances of this case, the equities

    favor an affirmative exercise of our discretion. Consequently,

    we deny the petition, without prejudice to Cargill's right to

    raise its claim of error, if it so chooses, in an end-of-case

    appeal.10



    The petition for a writ of mandamus is denied. The petition for a writ of mandamus is denied. _____________________________________________







    Appendix follows; dissenting opinion follows appendix








    ____________________

    10Just as orders disqualifying or refusing to disqualify
    counsel "can be reviewed as effectively on appeal of a final
    judgment as on an interlocutory appeal," Richardson-Merrill, Inc. ________________________
    v. Koller, 472 U.S. 424, 438 (1985), we see no reason why orders ______
    pertaining to judicial disqualification cannot be effectively
    reviewed at that time and in that manner. Nor is this scenario
    oddly configured. An end-of-case appeal is a matter of right,
    while mandamus is a matter of discretion. Courts have frequently
    found that difference dispositive in analogous circumstances.
    See, e.g., Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 ___ ____ ___________________ _____________
    (1980) (per curiam); In re Bushkin Assocs., 864 F.2d 241, 244 ______________________
    (1st Cir. 1989). And, moreover, the fact that a lengthy trial
    has intervened will not rob an appeal of its effectiveness. See, ___
    e.g., Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1992) ____ _______ _____________
    (vacating judgment on direct appeal following 35-day trial,
    despite the circuit court's earlier denial of mandamus relief on
    the same ground).

    20












    APPENDIX APPENDIX

    CHAMBERS CONFERENCE CHAMBERS CONFERENCE

    January 12, 1994 January 12, 1994



    THE COURT: This is a very simple matter, I THE COURT:

    think. At least the reason for the

    conference, so you don't have to get all

    excited about it, is because Mr. Bates is

    counsel in this matter and I have a

    disclosure that I must make to counsel.



    Approximately on December 19th, 1993, while

    Mrs. Carter and I were in the course of

    looking for a new house, I got in a

    controversy with a party in a contract, a

    purchase and sale, a minor controversy.



    I, on that date, called Gerald Petruccelli,

    Mr. Bates's partner, and I asked him if he

    could give me advice and perhaps represent me

    if it came to that.



    He called me back on December 20th and said

    that he had decided there was no impediment

    to this representation of me. I met with him

    on December 21 for about 45 to 50 minutes, we


    21












    discussed the matter. I told him that I

    wanted a quick resolution - I should practice

    what I preach.



    I had telephone conferences with him about

    the matter on December 22, 23, 28 and 29,

    four or five minutes a piece. I understand

    from him that he had telephone conferences

    during that period of time with another

    attorney and on January 6th, 1994, the matter

    was resolved to my satisfaction. On the 7th,

    Mr. Petruccelli rendered to me his bill and

    on the 10th, that bill was paid in full.



    The understanding at the conference that I

    had with him on the 21st of December was that

    I would pay the usual rate, usual fee

    computed at the usual hourly rate for the

    hours of devotion to the case that he would

    charge to any stranger off the street. And I

    was very serious about that, and I'm sure

    that he was and I think the bill was entirely

    satisfactory one to me, and I have no reason

    to expect that it is to him. So we have no

    kind of debt of any kind to each other out of

    this very brief transaction.


    22












    I will tell you that I am morally certain in

    my own mind that this series of events will

    not in any way affect my ability in the way

    I would find it to be properly decided, even

    if the event had not occurred.



    However, under the code, the canons of

    judicial conduct, I felt arguably perhaps,

    but I felt that it was proper, perhaps

    required, but at least proper that I disclose

    it and see if anyone has any objection in my

    continuing to serve as the judge who will

    ultimately decide this case.



    MR BATES: Speaking for the plaintiff, we MR BATES:

    have absolutely no objection.



    THE COURT: The record should also reflect THE COURT:

    that I never had any conversation with Mr.

    Bates or anyone else of Mr. Petruccelli's

    office.



    MR. O'LEARY: Speaking for the defense, there MR. O'LEARY:

    is no objection.






    23












    THE COURT: I wanted you to know this. THE COURT:

    That's all I have. We have been for some

    time - I have been in the course of dealing

    with motions which raise some very

    interesting and difficult questions and I

    expect that within a week or so I will be in

    a position to file a decision resolving that,

    so the matter can go forward. I apologize

    having held the matter up that long but these

    are very tough things, not matters of first

    impression, and I don't have a lot of

    guidance by better judges than I.



    MR. O'LEARY: Thank you. MR. O'LEARY:



    MR. BATES: We appreciate it. MR. BATES:



    THE COURT: Thank you very much. Another THE COURT:

    matter, the Graffam, matter, is scheduled for

    trial, which is in your office on the other

    side, you might just talk with them about it,

    Bill Kayatta, apprise him of what has

    happened and tell him that matter is also

    scheduled for conference for the same purpose

    so he can have a chance to reflect on it.




    24












    MR. BATES: I don't know that this needs to MR. BATES:

    be a part of the record. I know that Gerry

    told me that he was going to call Bill

    Kayatta, and did so.



    THE COURT: Gerry did call and tell me that THE COURT:

    he had called someone to see if that would

    create, if his representation would create

    any problem and I didn't know what case it

    was about or who the lawyer was. Ultimately

    he called me back and told me that he had

    found no impediment to his representation.



    MR. O'LEARY: I appreciate the disclosure. MR. O'LEARY:



    [End of conference]






















    25













    CAMPBELL, Senior Circuit Judge, (dissenting). _______________________

    While the question is exceedingly close, I regret that I

    cannot agree with the court. The court's opinion would be

    persuasive if written before the Judicial Conference of the

    United States had adopted Canon 3D of the Code of Conduct for ___________________

    United States Judges. But the court's opinion seems to me to ____________________

    pay too little attention to the district court's failure to

    have observed the Canon. Canon 3D provides,

    A judge disqualified by the terms of
    Canon 3C(1), except in the circumstances
    specifically set out in subsections (a)
    through (e) may, instead of withdrawing
    from the proceeding, disclose on the
    record the basis of disqualification. If __
    the parties and their lawyers after such _________________________________________
    disclosure and an opportunity to confer _________________________________________
    outside of the presence of the judge, all ____________________________________
    agree in writing or on the record that
    the judge should not be disqualified, and
    the judge is then willing to participate,
    the judge may participate in the
    proceeding. The agreement shall be
    incorporated in the record of the
    proceeding. (emphasis added).

    Canon 3D applies squarely to the situation here, in which a

    judge has sought the parties' waiver of his mandatory

    disqualification under 455(a). Congress expressly allows a

    judge to accept a waiver of his disqualification under

    455(a) (appearance of lack of impartiality) although not

    under 455(b) (bias, personal knowledge of facts, financial

    interest, etc.). See 28 U.S.C. 455(e). But while 455(e) ___

    specifies no more than that such waiver be preceded "by a

    full disclosure on the record of the basis for


    -26- 26













    disqualification," the judiciary is also subject to its own

    Canon 3D which imposes additional conditions that were not

    followed here. For that reason, I disagree that the parties

    ever effectively waived the duty imposed by 455(a) that the

    judge disqualify himself.

    I make two points at the outset. First, as my

    colleagues seem to concede, the judge's employment, as his

    own lawyer, of the senior partner of the law firm

    representing plaintiffs at the time he was considering a

    major dispositive motion in plaintiffs' lawsuit, gave rise to

    a reasonable question of his impartiality under 455(a).

    While this was hardly a major indiscretion as such matters

    go, it was the kind of conduct that gives rise to an

    appearance of impropriety. Our court is in apparent

    agreement as to the applicability of 455(a). However,

    because the district court felt otherwise, and because the

    issue deserves consideration, I have stated my reasons for

    finding that 455(a) applies in an appendix to this dissent.

    Section 455(a) required the judge to disqualify himself sua

    sponte unless he received and accepted an appropriate waiver

    from the parties.

    A second point is that the proceedings at the

    January 12 conference at which the judge candidly and

    commendably disclosed the matter omitted to follow Canon

    3D in basic ways. Canon 3D was developed to offset the



    -27- 27













    criticism that otherwise disqualified judges sometimes

    secured the parties' agreement to allow them to continue in

    cases by taking advantage of counsel's natural reluctance to

    offend a judge before whom they frequently had to appear.

    The original language of Canon 3D was drafted by a special

    committee of the American Bar Association chaired by the

    former chief justice of the Supreme Court of California,

    Justice Traynor. Justice Traynor emphasized that, before a

    valid waiver could occur, counsel must receive an opportunity

    to confer with their clients outside the judge's presence.

    The special committee also believed that the client as well

    as counsel had to be involved in the waiver decision, as the

    "parties are less likely than counsel to feel judicial

    pressure [to remain in the case] . . . ." Broadening and ______________

    Clarifying the Grounds for Judicial Disqualification: _____________________________________________________________

    Hearing on S. 1064 Before the Subcomm. of Courts, Civil _____________________________________________________________

    Liberties and the Administrative Justice of the House Comm. _____________________________________________________________

    on the Judiciary, 93d Cong., 2d Sess. (1974). ________________

    The Canon serves in part to dispel counsel's sense

    that by failing immediately to endorse the judge's continued

    presence in the case, counsel might annoy the judge and

    prejudice their cause. Under the Canon, counsel must be

    extended an opportunity to consider the disqualification

    issue outside the judge's presence, hence free from the fear





    -28- 28













    that any hesitancy to endorse the judge's continued presence

    may be personally held against him.

    In the present case, the judge never stated that

    local counsel was free to withdraw and discuss

    disqualification with his client and co-counsel. The judge

    knew or should have known at this time that counsel had no

    prior opportunity to discuss the issue with his client. The

    judge had not disclosed the subject of the conference in

    advance. Local counsel had made express inquiry the day

    previous as to what the January 12 meeting would be about and

    could learn nothing. Counsel, therefore, could not have

    discussed the issue with his client and lead counsel prior to _____

    the meeting. When he came to the conference, local counsel

    had to react on the spur of the moment, without knowing what

    rights the judge was prepared to recognize, without knowing

    whether the judge would recuse himself if counsel objected,

    and without reassurance from the court that, without offense,

    local counsel would be given a chance to consider this matter

    with his client outside of the court's presence. The express

    language of the Canon, conditioning a waiver upon an

    opportunity to confer with the parties and counsel outside

    the judge's presence, was not, in these circumstances, put

    into play.

    In hindsight, to be sure, local counsel could have

    sought to save the situation by requesting time to talk to



    -29- 29













    lead counsel and his client a request the judge indicates

    he would have granted. However, without the judge's advance

    advice, counsel would not necessarily be expected to know of

    his rights under Canon 3D, or indeed to know that Canon 3D

    existed at all. Moreover, counsel may have felt that, where

    the judge stated that the disclosed conduct would not affect

    his ability to decide the case, and indicated no clear

    willingness to withdraw, any hesitancy would simply be an

    irritant. The duty to extend the benefits of this Canon to

    the parties rests upon the judge. Here the judge did not

    mention the provisions of the Canon nor indicate what rights

    he would recognize.

    In such circumstances, I think it plain that no

    waiver occurred on January 12. In fact, the scenario at the

    January 12 conference was exactly the one that Canon 3D was

    intended to change. The drafters of Canon 3D thought that a

    judge who simply announced disqualifying facts, indicated his

    desire to continue to serve, and solicited and accepted oral

    waivers from the attorneys present, might be exercising a

    "velvet blackjack." Broadening and Clarifying the Grounds _______________________________________

    for Judicial Disqualification: Hearing on S. 1064 Before the _____________________________________________________________

    Subcomm. of Courts, Civil Liberties and the Administrative _____________________________________________________________

    Justice of the House Comm. on the Judiciary, 93d Cong., 2d _____________________________________________

    Sess. (1974). Canon 3D, by requiring discussion with the

    clients outside the judge's presence and, by requiring the



    -30- 30













    clients' acquiescence as well as that of counsel, sought to

    ease the pressures to acquiesce that inhered in the "old"

    process.

    It is true that the Code of Judicial Conduct is not

    statutory, nor does the Judicial Conference of the United

    States which adopted the Code hold a specific statutory grant

    of authority to enact binding ethical rules. However, the

    Conference is itself a creature of statute. See 28 U.S.C. ___

    331. Chaired by the Chief Justice, the Conference is the one

    body recognized as speaking administratively for the entire

    federal judiciary. Its adoption of Canon 3D, I suggest,

    gives the Canon great persuasive weight. Additionally, the

    provisions of Canon 3D emanated from a model ethical code

    drafted by the American Bar Association and adopted in one or

    another version, by many states. It is important, I think,

    to our institutional credibility, that the procedures set out

    in Canon 3D of the Code of Conduct for United States Judges

    be taken seriously.

    As, in my view, no waiver occurred by force of

    local counsel's acquiescence on January 12, the question

    arises whether some kind of de facto waiver or equitable bar

    should be implied from Cargill's failure to object promptly

    to the judge's continued participation once its local counsel

    had told it of the judge's disclosures. Cargill also learned

    at the January 12 conference that the judge was about to hand



    -31- 31













    down his ruling. If Cargill did not want the judge to

    participate, my colleagues believe that Cargill was required

    to protest then and there, rather than strategically waiting

    to see how the wind blew, objecting as it did only

    after the judge had ruled against it.

    This is a close question. There is certainly

    weight to my colleagues' view that Cargill may be misusing

    the Canon now for purely strategic purposes. It can be

    implied, moreover, that the district court having fully

    revealed the conduct in question, sincerely, if incorrectly

    under the Canon, relied on local counsel's approval, not

    withdrawn, as sanctioning the court's continuance in the

    case. But while reasonable minds may differ, I believe that

    the court's failure to follow Canon 3D's waiver procedures so

    clouded future events as to make it inappropriate to read too

    much into Cargill's failure to challenge the judge's

    continued participation during the week prior to the court's

    ruling on the motion. A primary purpose of the procedure

    outlined in the Canon is to remove, or at least to lessen,

    the pressure of the judge's feared resentment if a waiver is

    not quickly volunteered. This lessening of pressure would

    not have happened here. The Canon anticipates that the court

    will reassure attorneys in advance of their right to speak to

    their clients out of the judge's presence. Also that the

    judge will inform counsel that he will withdraw if waiver is



    -32- 32













    not granted, or, at least, of his intentions in this regard.

    In the present case, by the time Cargill learned of the

    judge's stated grounds for disqualification, the judge had

    already made the decision not to recuse himself. At that

    point, Cargill had no assurance that its repudiation of local

    counsel's acquiescence would be honored. It had to decide

    whether to risk angering the judge futilely at a time when

    the matter seemed to have been settled and a decision on its

    motion was imminent.

    To be sure, Cargill's local counsel could have

    acted differently. It is often true and properly so

    that a client is bound by positions taken or not taken by his

    attorney. Canon 3D makes it clear, however, that attorney

    acquiescence, standing alone, is not enough to constitute a

    waiver. Local counsel's acquiescence followed by Cargill's

    reluctance to object cannot be disassociated from the judge's

    initial failure to implement the Canon provision a

    provision that the judge himself is responsible for

    explaining and implementing in the first instance. Canon 3D,

    setting out the requirements for a judge to secure a valid

    waiver of his own disqualification, is not mere grist for the

    adversarial mill. Rather, it is a rule of conduct the judge

    is supposed to know and apply. While Cargill's counsel might

    have saved the situation, responsibility for the error should

    not too easily be shifted to the shoulders of one of the



    -33- 33













    parties. Given the altered situation confronting Cargill

    once the die had been cast on January 12, I am not disposed

    to find that Cargill ratified local counsel's earlier

    acquiescence simply by taking no action before the court's

    decision.

    Cargill, to be sure, had to act diligently if it

    wished to challenge the judge. Delay would soon become

    unfair to Cargill's opponent, who would continue to invest

    money and effort into the lawsuit in reliance upon the

    continued service of the judge in question. But Cargill's

    raising of an objection within a month after the decision

    seems to me to be acceptable given that the initial error was

    that of the judge, not Cargill. In so saying, I recognize

    the validity of my colleagues' concern that Cargill may well

    be acting strategically, and that courts are, and should be,

    reluctant to allow two bites at the apple. But against this

    must be weighed the nonobservance of Canon 3D.

    As 455(a) applied and, in my view, no sufficient

    waiver occurred under 455(e), the question of remedy

    arises. In Liljeberg v. Health Serv. Acquisition Corp., 486 _________ ______________________________

    U.S. 847, 862-64 (1988), the Supreme Court wrote:

    A conclusion that a [ 455(a)] violation
    occurred does not, however, end our
    inquiry. As in other areas of the law,
    there is surely room for harmless error
    committed by busy judges who
    inadvertently overlook a disqualifying
    circumstance. There need not be a
    draconian remedy for every violation of


    -34- 34













    455(a) . . . . We conclude that in
    determining whether a judgment should be
    vacated for a violation of 455(a), it
    is appropriate to consider the risk of
    injustice to the parties in the
    particular case, the risk that the denial
    of relief will produce injustice in other
    cases, and the risk of undermining the
    public's confidence in the judicial
    process.

    See also In re Allied-Signal, Inc., 891 F.2d 974, 975-76 (1st ________ _________________________
    Cir. 1989).

    For a new judge to be brought in at this juncture

    would not, in my view, be a draconian remedy, nor a license

    for unwarranted attacks on courts. To be sure, the question

    that arose here the judge's brief use of the senior law

    partner in the same law firm retained by plaintiffs was

    not monumental and quite likely would have been waived by

    Cargill in a proper proceeding. Moreover, evidencing his

    integrity, the judge quickly called a conference and revealed

    all the relevant facts. Nonetheless, the judge's retention

    of Mr. Petruccelli at the time of the pending lawsuit did

    create the appearance of lack of impartiality; and section

    455(a) required the judge to step aside unless he received

    proper waivers from the parties. As this did not occur here,

    and as the case is still at an early stage, I think it would

    be reasonable for another judge to enter the case. While

    this imposes some small price on the court and plaintiffs, it

    is justified as demonstrating the need to observe the Canon.





    -35- 35













    I would add that, had mandamus requiring a new

    judge been granted, it would have been open to this court to

    let stand the former judge's ruling on Cargill's dismissal

    motion. Whether to do this would have been a close question,

    but, however that issue were resolved, the bringing in of a

    new judge would have emphasized that Canon 3D procedures are

    not precatory.

    I do not take too seriously my colleagues'

    suggestion that this issue may be revisited several years

    down the road on direct appeal from any final judgment

    rendered in plaintiffs' favor. By then there would be

    overwhelming equities in plaintiffs' favor not to require ___

    them to undergo the expense and burden of retrying the case

    before a different judge. The Supreme Court has stated "that

    in determining whether a judgment should be vacated for a

    violation of 455(a), it is appropriate to consider the risk

    of injustice to the parties." Liljeberg, 486 U.S. at 864. _________

    Mandamus has been properly recognized as the usual and proper

    remedy for raising and resolving promptly a question of

    judicial disqualification such as this. See, e.g., Alexander ___ ____ _________

    v. Primerica Holdings, Inc., 10 F.3d 155 163 (3d Cir. 1993); ________________________

    In re United States, 666 F.2d 690, 694 (1st Cir. 1981). I ____________________

    would expect that the court's decision, which has been

    rendered after the most careful consideration by all members

    of the panel, will end the matter.



    -36- 36













    Appendix to Judge Campbell's Dissent Appendix to Judge Campbell's Dissent



    For the following reasons, I conclude that the

    judge's relationship with Mr. Petruccelli required him to

    recuse himself under 28 U.S.C. 455(a) absent receipt of the

    parties' waiver. That statute provides that a judge "shall _____

    disqualify himself in any proceeding in which his

    impartiality might reasonably be questioned." (emphasis _________________

    supplied). The legislative history indicates that section

    455(a) was meant to lessen the traditional "duty to sit,"

    and, as the Supreme Court has indicated, to require

    avoidance of even the appearance of partiality. Liljeberg v. _________

    Health Serv. Acquisition Corp., 486 U.S. 847, 860-61 (1988). ______________________________

    Recusal may be required even in the absence of actual

    partiality if there is an objectively reasonable basis for

    doubting the judge's impartiality. Id.; see Code of Judicial ___ ___ ________________

    Conduct Canon 2 (1973) ("[A] judge should avoid impropriety _______

    and the appearance of impropriety in all his activities.") __________________

    (emphasis supplied). The Committee on the Codes and Conduct

    of the Judicial Conference of the United States stated that

    where an attorney-client relationship
    exists between the judge and the lawyer
    whose law firm appears in the case, the
    judge should recuse absent remittal.

    2 Administrative Office of the U.S. Courts, Guide to _________

    Judiciary Policies and Procedures V-25 (1993). _________________________________




    -37- 37













    The proper standard for ascertaining whether a

    judge's impartiality might reasonably be questioned under

    455(a) is whether the charge of lack of impartiality is

    grounded on facts that would create a reasonable doubt, not

    in the mind of the judge, or even necessarily that of the

    litigant, but rather in the mind of the reasonable person.

    See United States v. Cowden, 545 F.2d 257, 265 (1st Cir. ___ _____________ ______

    1976), cert. denied, 430 U.S. 909 (1977). Section 455(a) ____________

    requires a contextual, case-by-case analysis. It does not

    imply a bright-line rule disqualifying any judge who ever has

    personal dealings with an attorney whose firm represents

    litigants before the same judge. The existing case law on

    the subject of judge-attorney dealings rests on exceedingly

    fact-specific judgments, with different outcomes in different

    situations.11



    ____________________

    11. See In re Placid Oil Co., 802 F.2d 783 (5th Cir. 1986); ___ _____________________
    Potashnick v. Port City Constr. Co., 609 F.2d 1101 (5th __________ _______________________
    Cir.), cert. denied, 449 U.S. 820 (1980); Texaco v. Chandler, ____________ ______ ________
    354 F.2d 655 (10th Cir. 1965), cert. denied, 383 U.S. 936 ____________
    (1966); Rapp v. Van Dusen, 350 F.2d 806 (3d Cir. 1965); In re ____ _________ _____
    Snowshoe Co., 137 B.R. 619 (D. W. Va. 1991), aff'd mem., 953 ____________ __________
    F.2d 639 (4th Cir. 1992); Carbana v. Cruz, 595 F. Supp. 585 _______ ____
    (D.P.R. 1984), aff'd mem., 767 F.2d 905 (1st Cir. 1985); ___________
    Miller Indus., Inc. v. Caterpillar Tractor Co., 516 F. Supp. ___________________ ________________________
    84 (D. Ala. 1980); Smith v. Sikorsky Aircraft, 420 F. Supp. _____ _________________
    661 (C.D. Cal. 1976). See also Varela v. Jones, 746 F.2d _________ ______ _____
    1413 (10th Cir. 1984); S.J. Grove & Sons Co. v. I.B.T., 581 ______________________ ______
    F.2d 1241 (7th Cir. 1978); United States v. Equifax, Inc., _____________ _____________
    557 F.2d 456 (5th Cir. 1977), cert. denied, 434 U.S. 1035 ____________
    (1978); In re Georgetown Park Apt., 143 B.R. 557 (Bankr. 9th __________________________
    Cir. 1992). Cf. In re Allied-Signal, Inc., 891 F.2d 974 (1st ___ _________________________
    Cir. 1989).

    -38- 38













    Having said this, certain principles seem clear. A

    judge would ordinarily be disqualified to sit by 455(a) if

    an attorney in the case before him or her were, at the same

    time, actively representing the judge in a personal matter.

    See 13A Charles Wright, Arthur Miller & Edward Cooper, ___

    Federal Practice and Procedure 3549 at 614 (1984); cf. ________________________________ ___

    Potashnick, 609 F.2d at 1110-12; Texaco, 354 F.2d at 657. __________ ______

    And while the situation is more attenuated where the judge is

    being personally represented not by the same attorney but by

    someone else in the attorney's firm, the latter situation is

    at least cause for concern, as there can be no doubt that, in

    many factual situations, such overlap can create the

    appearance of partiality calling for withdrawal under

    455(a). The members of the Judicial Conference Committee

    advising judges as to the proper interpretation of the Code

    of Conduct have said as much. See 2 Guide to Judiciary ___ ___________________

    Policies and Procedures, supra, at V-25. _______________________ _____

    Weighing all the factors in the present case in

    which I entertain no doubt whatsoever as to the judge's

    personal integrity I nonetheless believe that a

    reasonable person viewing all the circumstances might have

    questioned the impartiality of the judge. The judge's ruling

    to the contrary was, I believe, an abuse of discretion. See ___

    In re United States, 666 F.2d 690, 697 (1st Cir. 1981) (a _____________________





    -39- 39













    federal judge's decision on whether to recuse himself or

    herself is committed to that judge's sound discretion).

    The judge received personal legal services from the

    senior partner of Petruccelli & Martin, a small eight-member

    firm, close to the time the court ruled upon a dismissal

    motion that, had it been resolved for Cargill, would have put

    Petruccelli & Martin's client out of court. The problem is

    not simply that by personally retaining Mr. Petruccelli, the

    judge indicated he had high regard for the latter's

    professional abilities. Judges may and often do, with

    propriety, indicate respect for an attorney's competence.

    Here, however, by retaining the senior partner of this small

    firm for personal legal advice while having under advisement

    a dispositive motion in a case being handled by other members

    of the firm, the court gave the appearance that he may have

    had a particular affinity for that firm and perhaps some

    close and special relationship. Other attorneys in the same

    case could reasonably have been offended by what might have

    appeared, from the outside, to have been a confidential

    relationship between the judge and Mr. Petruccelli at that

    particular time. Also, even after the ending of the judge's

    own attorney-client relationship, an outside observer might

    wonder if, in some manner, consciously or unconsciously, the

    judge's appreciation for a job well done by plaintiff's law

    firm might possibly affect his handling of the pending case.



    -40- 40













    The judge's brief attorney-client relationship with

    Mr. Petruccelli ended, it is true, before the judge's

    decision in the case against Cargill. The judge, however,

    had worked on Cargill's motion during the period of that

    relationship. Moreover, the relationship ended only ten days

    before the decision a period too short to insulate the

    two events from one another. Any appearance of partiality

    that existed prior to the time the representation ceased

    cannot be meaningfully separated from the court's decision of

    January 19.

    It is important to emphasize that 28 U.S.C.

    455(a) is concerned with the appearance of impartiality. __________

    Liljeberg, 486 U.S. at 860-61. Disqualification for actual _________ ______

    personal bias or prejudice is separately covered by

    455(b)(1). The judge seems to have overlooked the appearance

    aspect of the statute when he emphasized at the January 12

    conference his moral certainty that his handling of the case

    would not be affected by the relationship with Mr.

    Petruccelli. The question was not just whether he was biased

    or prejudiced, but whether his impartiality might reasonably













    -41- 41













    be questioned, a related but different matter.12 According

    to the House Report accompanying amendments to 455,

    Subsection (a) of the amended section 455
    contains the general, or catch-all, [of
    Canon 3C] that a judge shall disqualify
    himself in any proceeding in which 'his
    impartiality' might reasonably be
    questioned. This sets up an objective
    standard, rather than the subjective
    standard set forth in the existing
    statute . . . . This general standard is
    designed to promote public confidence in
    the impartiality of the judicial process
    by saying, in effect, if there is a
    reasonable factual basis for doubting the
    judge's impartiality, he should
    disqualify himself and let another judge
    preside over the case. The language also
    has the effect of removing the so-called
    'duty to sit' which has become a gloss on
    the existing statute . . . .

    H. Rep. No. 93-1453, 93d Cong., 2d Sess. (1974), reprinted in ____________

    1974 U.S.C.C.A.N. 6351.

    To be sure, the drafters of the statute were also

    concerned, as are my colleagues here, that the statute not be

    ____________________

    12. Section 455 was completely rewritten by Congress in 1974
    so as to conform with the then-new Code of Judicial Conduct _________________________
    which the Judicial Conference of the United States had
    adopted in 1973 as being applicable to all federal judges.
    Section 455 was amended so as nearly to duplicate the Code's
    Canon 3C, with the intention that federal judges "would no
    longer be subject to dual [i.e.] Code and statutory standards
    governing their qualification to sit in a particular
    proceeding." H. Rep. No. 93-1453, 93d Cong., 2d Sess.
    (1974), reprinted in 1974 U.S.C.C.A.N. 6351. The Code of ____________ _______
    Judicial Conduct was drafted under sponsorship of the __________________
    American Bar Association by a committee chaired by former
    California Chief Justice Roger J. Traynor. The other
    committee members included Justice Potter Stewart of the U.S.
    Supreme Court, Judge Irving R. Kaufman of the U.S. Court of
    Appeals for the Second Circuit, and Judge Edward T. Gignoux
    of the U.S. District Court for the District of Maine.

    -42- 42













    used by litigants for purely strategic purposes. The House

    Report cautions that the new test should not be used by

    judges to avoid sitting in difficult or controversial cases.

    Disqualification for lack of impartiality must always have "a

    reasonable basis." Id. (emphasis in original). __________ ___

    Yet the question at issue is, objectively, whether ___________

    the circumstances reasonably gave rise to a question of the

    judge's impartiality. If so, the judge shall disqualify _____

    himself. An express purpose of the 1974 rewrite of 455 was

    to abandon the subjective standard of the older statute,

    which had depended largely on the judge's personal view of

    whether he or she could behave impartially. Unfortunately,

    the circumstances here created a situation where a reasonable

    observer could entertain doubts as to the judge's

    impartiality. The judge himself obviously had concerns about

    the appearance of what had happened, leading him to call the

    conference of January 12 for the purpose of disclosing what

    had transpired. That a question of the judge's

    impartiality under 455(a) existed does not mean that the

    judge committed a serious impropriety. The judge explained

    that he did not immediately focus on the fact that Mr.

    Petruccelli's firm, partners and associates were involved in

    the case pending before him. Once aware, the judge

    commendably disclosed the relationship. This action speaks

    loudly as to the judge's personal integrity. The fact



    -43- 43













    remains, however, that a reasonable observer could

    objectively question the judge's impartiality in the

    particular circumstances. The judge was, therefore, required

    to remove himself unless he had received the parties' waiver.













































    -44- 44






Document Info

Docket Number: 94-8042

Filed Date: 10/10/1995

Precedential Status: Precedential

Modified Date: 9/21/2015

Authorities (30)

United States Ex Rel. Greathouse v. Dern , 53 S. Ct. 614 ( 1933 )

United States Ex Rel. Girard Trust Co. v. Helvering , 57 S. Ct. 855 ( 1937 )

Allied Chemical Corp. v. Daiflon, Inc. , 101 S. Ct. 188 ( 1980 )

In Re Snowshoe Co. , 137 B.R. 619 ( 1991 )

First City National Bank of Austin v. Georgetown Park ... , 92 Daily Journal DAR 12338 ( 1992 )

United States Ex Rel. Turner v. Fisher , 32 S. Ct. 37 ( 1911 )

In the Matter of United Shoe MacHinery Corporation, Movant , 276 F.2d 77 ( 1960 )

In Re Bushkin Associates, Inc., and Merle J. Bushkin , 864 F.2d 241 ( 1989 )

in-re-drexel-burnham-lambert-incorporated-drexel-burnham-lambert-group , 861 F.2d 1307 ( 1988 )

Kerr v. United States Dist. Court for Northern Dist. of Cal. , 96 S. Ct. 2119 ( 1976 )

alfred-stauble-individually-and-fub-warrob-inc-v-warrob-inc-alfred , 977 F.2d 690 ( 1992 )

Donna Reilly, Etc. v. United States , 863 F.2d 149 ( 1988 )

Haire v. Cook , 237 Ga. 639 ( 1976 )

In Re United States of America , 666 F.2d 690 ( 1981 )

United States v. Jerome Fleet Cowden , 545 F.2d 257 ( 1976 )

howard-h-rapp-administrator-of-the-estate-of-richard-f-zeller-deceased , 350 F.2d 806 ( 1965 )

United States v. John W. Patterson, Jr. , 882 F.2d 595 ( 1989 )

Leon H. Brody v. President & Fellows of Harvard College , 664 F.2d 10 ( 1981 )

In Re Placid Oil Company, Placid Building & Service Company,... , 802 F.2d 783 ( 1986 )

In Re International Business MacHines Corporation, United ... , 618 F.2d 923 ( 1980 )

View All Authorities »