United States District Court, D. Arizona
NEIL V. WAKE, District Judge.
Plaintiff seeks relief for violation of the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq. Representing Defendant are two lawyers from the Phoenix office of Littler Mendelson PC, an international law firm with over 1, 000 attorneys and 375 equity shareholders in sixty-plus offices around the world. The firm practices labor and employment law, representing employers. It generally does not work on a contingent fee, and this is a defense case. In this Memorandum I address whether I am disqualified because my brother-in-law, who has no role in this case, is an equity shareholder in the firm, in an office in another state. I conclude that I am not disqualified.
When my brother-in-law joined the firm six years ago, I looked into whether that disqualified me from the firm's cases. The governing provision of the Code of Conduct for United States Judges is Canon 3C(1), which states generally that a judge "shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." The Canon elaborates that disqualification extends to, but is not limited to, matters in which "the judge or the judge's spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:... known by the judge to have an interest that could be substantially affected by the outcome of the proceeding." Canon 3C(1)(d)(iii). The Canon explains that "the following relatives are within the third degree of relationship: parent, child, grandparent, grandchild, great grandparent, great grandchild, sister, brother, aunt, uncle, niece, and nephew." Canon 3C(3)(a). The disqualification statute is substantively identical. See 28 U.S.C. § 455. My brother-in-law is within that degree of relationship.
The questions then are whether (1) an equity partnership interest in a law firm representing a party is "an interest" in the proceeding and (2) that interest "could be substantially affected by the outcome of the proceeding." Canon 3C(1)(d)(iii); 28 U.S.C. § 455(b)(5)(iii). Based on the text of the Canon and the statute, and in the specific circumstances of the Littler Mendelson firm, I concluded that my brother-in-law's equity partnership "interest" could not "be substantially affected by the outcome of the proceedings."
Thus it stood for five years, during which time I presided in several cases each year in which the firm was counsel. I sometimes mentioned in court that my brother-in-law is a partner in the firm, and the firm always informed opposing parties. My participation was never questioned.
Last year I learned that my conclusion was later contradicted by Advisory Opinion No. 58 of the United States Committee on Codes of Conduct, issued after I researched this issue. The Committee consists of federal judges appointed by the Chief Justice of the United States "to provide advice on the application of the Code of Conduct for United States Judges." In re Bernard, 31 F.3d 842, 844 (9th Cir. 1994). It is not charged with giving advice on the disqualification statute, but the statute and the Code of Conduct are substantively identical. The Committee's scholarship, judgment, and independence are great help to two thousand five hundred federal judges. "Although judges are neither required to consult the committee nor bound by its rulings, the committee provides invaluable guidance and a detached viewpoint." Id.
Advisory Opinion No. 58 addresses questions "regarding recusal based on employment by a law firm of a relative of the judge." United States Comm. on Codes of Conduct. Op. 58 (June 2009). "If the relative is an associate or non-equity partner and has not participated in the preparation or presentation of the case before the judge, and the relative's compensation is in no manner dependent upon the result of the case, recusal is not mandated." Id. But the Committee concluded that "an equity partner in a law firm generally has an interest that could be substantially affected by the outcome of the proceeding' in all cases where the law firm represents a party before the court." Id. Therefore, "if the relative... is an equity partner in a law firm that represents a party, the judge must recuse." Id.
Advisory Opinion No. 58 states a categorical rule of recusal when a relative within the third degree of relationship is an equity partner in a law firm in the case, notwithstanding his residence in a different office and lack of any involvement or effect on his income.
Another district judge has already found the per se rule of disqualification in Advisory Opinion No. 58 to be an erroneous interpretation of Canon 3C(1)(d)(iii). In Melendres v. Arpaio, No. CV-07-2513-PHX-GMS, 2012 WL 2577364, 2012 U.S. Dist. LEXIS 91785 (D. Ariz. July 3, 2012), plaintiffs were represented by the Redwood Shores, California, office of Covington & Burling LLP, an "international firm with multiple offices, over 200 partners and hundreds of other attorneys who were either associates or of counsel to the firm." 2012 WL 2577364, at *1-2, 2012 U.S. Dist. LEXIS 91785, at *4, 7. Observing that "even though an opinion of the United States Commission on Codes of Conduct is advisory in nature, it should be considered carefully, " 2012 WL 2577364, at *4, 2012 U.S. Dist. LEXIS 91785, at *11, Judge Murray Snow concluded that Canon 3C(1) did not require him to recuse. His brother-in-law worked in a different office and a different practice area, the plaintiffs were seeking only injunctive relief, any attorney's fees the firm might be awarded were "both speculative and very small, " and the firm had taken steps to "screen" his brother-in-law from the case. 2012 WL 2577364, at *2, 4-5, 2012 U.S. Dist. LEXIS 91785, at *7, 14.
Circumstances like those in Melendres were not discussed in Advisory Opinion No. 58, which stated its conclusion summarily. Therefore, I asked the Committee in February 2014 for an opinion on whether Advisory Opinion No. 58 would call for recusal even when, in the Committee's summary, "the relative works in a different office and city from that of the lawyers before [the court] and where the ...