A lawyer is representing a client in a contentious administrative hearing. During a break, the lawyer observes the presiding administrative law judge (ALJ) having an extended, apparently cordial, private conversation with the opposing counsel in a hallway, out of earshot. The lawyer has no other information about the content of the conversation. What is the lawyer's MOST appropriate initial action?
- AIgnore the conversation unless specific evidence of bias emerges.
- BBring the observation to the attention of the ALJ on the record during the proceedings.
- CReport the ALJ's conduct to the judicial ethics committee.
- DFile a motion for recusal of the ALJ immediately based on the appearance of impropriety.
Show answer & explanationAnswer & explanation
Correct answer: B. Bring the observation to the attention of the ALJ on the record during the proceedings.
Canon 2 of the Model Code of Judicial Conduct requires judges to avoid the appearance of impropriety. While a cordial conversation alone isn't proof of bias, it creates an appearance issue which can undermine the impartiality of the tribunal. The most appropriate initial action for the lawyer is to raise the concern on the record, allowing the ALJ to explain the conversation or address the appearance issue. This creates a record for any future appeals or actions, and gives the ALJ an opportunity to clarify or mitigate the perception of impropriety before more drastic measures are taken.
Why the other options are wrong
- A. Ignoring the appearance of impropriety, especially in an adjudicative setting, is a dereliction of the lawyer's duty to ensure a fair and impartial tribunal.
- C. Reporting to a judicial ethics committee is a serious step and typically reserved for clear violations or after attempts to address the issue within the proceeding have failed.
- D. While recusal might eventually be warranted, immediately filing a motion without first seeking clarification from the ALJ can be premature and overly aggressive.
Impartiality of the Tribunal (Appearance of Impropriety)
Lawyers have a duty to ensure the impartiality of the tribunal. If a lawyer observes conduct by a judge that creates an appearance of impropriety, the lawyer should raise the concern on the record.
- Judges must avoid actual and apparent impropriety.
- Lawyers must act to preserve the integrity of the judicial process.
- Addressing concerns on the record is a crucial first step.
Memory trick: Judicial chats out of sight? Bring it to light, on the record, for what's right.