in re: v. cargill, inc., 1st cir. (1995)
TRANSCRIPT
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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.
_________________________
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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, Ver
____________________ ___________________ __
Liipfert, Bernhard, McPherson and Hand, Peter J. DeTroy, III
______________________________________ ____________________
Norman, Hanson & DeTroy were on brief, for petitioner.
_______________________
Joel C. Martin, with whom Michael K. Martin, Daniel W. B
______________ _________________ __________
and Petruccelli & Martin were on brief, for plaintiffs. ____________________
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practices. Cargill retained a Washington-based firm, Ver
Liipfert, Bernhard, McPherson, and Hand (Verner, Liipfert)
lead counsel, and a Portland firm, Pierce, Atwood, Scrib
Allen, Smith, and Lancaster (Pierce, Atwood), as local coun
It then moved to dismiss on the basis that the plaint
experienced no antitrust injury and, therefore, lacked stan
____________________
1Petitioner premises his argument on the ground that
judge's impartiality might reasonably be questioned.
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).
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2
to maintain the action.
On December 19, 1993, while Cargill's motion
pending before him, the district judge to whom the case had
randomly assigned became embroiled in what he subseque
described as a "minor controversy" relating to his efforts,
those of his wife, to purchase a new home. The judge telep
Gerald Petruccelli, a principal partner in P&M, and sought
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that the judge dealt only with Petruccelli (not with any o
P&M attorney).
The judge maintains that, at the time he en
counsel, he had "no conscious awareness that Mr. Petruccelli
his firm were involved in this specific litigation then pen
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before him.2 Nonetheless, a few days after he had reta
Petruccelli, the judge asked his docket clerk to check
calendar for pending cases in which P&M might have appeared.
clerk brought two such cases to the judge's attention at a
the time that the attorney-client relationship ended. On
these was the case against Cargill. Although Petruccelli hi
had played no role in P&M's representation of the plaintiffs,
judge decided that he had best disclose his dealings
Petruccelli.
On January 11, the clerk, acting at the ju
direction, notified local counsel to attend a conference on
following day. The disclosure conference (a transcript of
comprises the appendix) proved to be brief. Attorneys Bates
Keating appeared for the plaintiffs, and Attorneys O'Leary
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Einsiedler (both of Pierce, Atwood) appeared for Cargill.
advised of the attorney-client relationship between Petrucc
and the judge, both Bates and O'Leary quickly volunteered
their respective clients had no objection to the ju
continued participation in the case. The judge then advise
lawyers that he was grappling with Cargill's motion to dis
which, in his view, "raise[d] some very interesting and diffi
questions." He forecast that he would hand down a deci
____________________
2This declaration, and other declarations reflectin
judge's state of mind, are extracted from the record o
conference held in this case (reprinted in the appendix),
the judge's notice to counsel (described infra), and from
_____
order denying Cargill's recusal motion. For the most p
petitioner has not challenged the factual accuracy of the ju
statements.
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4
"within a week or so."
Precisely one week thereafter, the judge issued a
page rescript denying Cargill's motion to dismiss. While
judge closed his chambers and released his staff on holiday l
from December 24, 1993 through January 3, 1994, he admitt
labored over the matter during some portion of the period
Petruccelli represented him.
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The filing of the opinion elicited no imme
response. Several weeks later, however, Bernhardt Wruble
Verner, Liipfert partner, wrote a letter to the court asser
that, because "a judge's contemporaneous representation
opposing counsel is uniformly regarded as a basis for obliga
disqualification," the judge should withdraw his order den
the motion to dismiss, relieve himself of all responsibility
the case, and reassign it to another jurist. Anticipatin
predictable reaction to this demand, Wruble suggested
Pierce, Atwood's acquiescence was of no moment. Since l
counsel lacked prior notice of the purpose of the Januar
conference and, hence, had no opportunity to consult in ad
with either the client or lead counsel, Wruble wrote, the j
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had not afforded petitioner "adequate time for a consi
response" to the disclosure. Thus, there could be no "effect
waiver.
The judge did no fewer than three things upon recei
Wruble's communique. First, he postponed a scheduled st
conference in the case. Second, he directed any party who so
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his recusal to file a formal motion to that effect. Thir
composed and served a statement, denominated as a notice
counsel, in which he denied "that the Court required a deci
on waiver of any objection to the Court's continued participa
to be made at the conference." The judge explained that he
the disclosure conference to be informational in nature, that
"to advise counsel of the circumstances of Mr. Petruccel
representation and afford counsel an opportunity to confer
clients and other counsel to decide whether they wanted to
for recusal or request other action by the court." But,
the judge, though he intended to give counsel a full mont
which to advise him of their clients' positions with respec
the disclosed matter and, with this in mind, thought
sensible to summon only local counsel to the disclo
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conference he did not do so because, immediately followin
revelation, both counsel, acting for their respective clie
spontaneously disclaimed any objection to his conti
participation in the case.
On February 25, 1994, Cargill asked the district c
to certify for interlocutory appeal the January 19 order den
the motion to dismiss. See 28 U.S.C. 1292(b) (198
___
Roughly two weeks later, Cargill moved for recusal, proffe
several affidavits. Cargill's motion, like Wruble's lette
February 13, made it clear that Cargill's position rested
____________________
3The district court eventually denied this mot
Petitioner does not assign error to the denial, nor coul
rewardingly do so.
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6
supposed appearance of impropriety, that is, the existenc
circumstances in which Cargill believed that the ju
impartiality might reasonably be questioned. See 28 U.S.C
___
455(a), quoted supra note 1. Cargill did not advance, the
_____
now, any claim of actual bias. The plaintiffs opposed
recusal motion. In their opposition, they made two princ
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Federal appellate courts are empowered to i
prerogative writs that are "necessary or appropriate in ai
their respective jurisdictions" under the All Writs Act,
U.S.C. 1651(a) (1988). Because such writs disrupt
mechanics of the judicial system by accelerating appel
intervention, prerogative writs foster piecemeal review
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disturb the historic relationship between trial and appel
courts they should "be used stintingly and brought to bear
in extraordinary situations." Doughty v. Underwriters
_______ ___________
Lloyd's, London, 6 F.3d 856, 865 (1st Cir. 1993). Mandamu
________________
such a writ. It is strong medicine, and should neither
prescribed casually nor dispensed freely.
Consistent with these principles, the standards
issuance of the writ are high. A petitioner seeking man
must show both that there is a clear entitlement to the re
requested, and that irreparable harm will likely occur if
writ is withheld. See United States v. Horn, 29 F.3d 754,
___ ______________ ____
(1st Cir. 1994); Doughty, 6 F.3d at 866; In re Pearson, 990
_______ _____________
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653, 657 & n.4 (1st Cir. 1993). Sometimes, even these spec
showings are not enough to justify a court's use of its man
power. In the final analysis, a writ of mandamus is
exceptional remedy and "is to be granted only in the exercis
sound discretion." Whitehouse v. Illinois Cent. R. Co., 349
__________ _____________________
366, 373 (1955). In this context, equity informs the cou
discretion. See Kerr v. United States Dist. Court, 426 U.S.
___ ____ _________________________
403 (1976); United States v. Helvering, 301 U.S. 540, 543 (19
_____________ _________
United States v. Dern, 289 U.S. 352, 359 (1933); Doughty, 6
_____________ ____ _______
at 866; United States v. Patterson, 882 F.2d 595, 600 (1st
_____________ _________
1989), cert. denied, 493 U.S. 1027 (1990); In re First Fed.
_____ ______ _________________
& Loan Ass'n, 860 F.2d 135, 139-40 (4th Cir. 1988); Vishnevs
____________ ________
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United States, 581 F.2d 1249, 1255 (7th Cir. 1978).
_____________
We have held that, in an appropriate case, an issu
8
judicial disqualification may present a sufficie
extraordinary situation to justify the unsheathing of
mandamus power. See In re Allied-Signal, Inc., 891 F.2d 967,___ _________________________
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(1st Cir. 1989), cert. denied, 495 U.S. 957 (1990); In re Coo
_____ ______ ________
821 F.2d 833, 834 (1st Cir. 1987); In re United States, 666
___________________
690, 694 (1st Cir. 1981); see also In re International Busi
___ ____ ________________________
Mach. Corp., 618 F.2d 923, 927 (2d Cir. 1980). However,
___________
usual prerequisites to mandamus relief a showing of both c
entitlement to the requested relief and irreparable harm wit
it, accompanied by a favorable balance of the equities do
vanish merely because judicial disqualification is the busi
of the day. See, e.g., Allied-Signal, 891 F.2d at 969; Coo
___ ____ _____________ __
821 F.2d at 834; In re United States, 666 F.2d at 694. In o
___________________
words, the mere fact that a petition for mandamus is directe
securing the trial judge's removal does not ensure that
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higher court will entertain the petition.
III. DISCUSSION
III. DISCUSSION
After careful perscrutation of the record, we conc
that petitioner's quest for mandamus should go unrequi
Cargill has shown neither that it is clearly and indisput
entitled to the writ nor that it faces an intolerable ris
irreparable harm should it be forced to await appellate revie
the ordinary course. Moreover, Cargill's failure to take ti
action, after learning of the judge's disclosure and
counsel's ensuing waiver of objection, tips the equitable bal
and argues persuasively against issuance of the writ.
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A
A
We turn first to the matter of entitlement to
relief requested. Assuming, arguendo, that the ju
________
relationship with Petruccelli created an appearance
impropriety adequate to animate section 455(a) and we t
that it probably did4 Cargill's entitlement to an orde
disqualification remains questionable. Regardless of whether
actions of its local counsel effected a fully valid waiver of
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disqualifying circumstance, the silence of Cargill and its
counsel after learning what had transpired may very well
added the missing element, ratified the waiver, and given
life. We elucidate below.
The relevant statute, 28 U.S.C. 455(e), pla
contemplates that a party may waive an appearance-of-impropr
ground for disqualification. The statute itself does not de
____________________
4The disqualification requirement of section 455(a)
triggered, despite the lack of any actual bias on the ju
part, if a reasonable person, knowing all the circumstan
would question the judge's impartiality. See Liljeberg v. He
___ _________ _
Servs. Acquisition Corp., 486 U.S. 847, 861-62 (1988).
_________________________
observers would agree that a judge should not hear a case ar
by an attorney who, at the same time, is representing the j
in a personal matter. See 13A Charles Wright & Arthur Mil
___
Federal Practice and Procedure 1349, at 614 (1984) (ci
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________________________________
cases). Although the appearance of partiality is attenuated
the lawyer appearing before the judge is a member of the same
firm as the judge's personal counsel, but not the
individual, many of the same cautionary factors are still
play. See, e.g., 2 Administrative Office of the U.S. Cou
___ ____
Guide to Judiciary Policies and Procedures V-32 (1
__________________________________________________
(expressing the view that "where an attorney-client relation
exists between the judge and the lawyer whose law firm appear
the case, the judge should recuse absent remittal").
principle would seem to have particular force where, as here,
law firm is small and the judge's lawyer is a name partner.
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the form or prerequisites of such a waiver; it only imposes
condition that the waiver be "preceded by a full disclosur
the record of the basis for disqualification." 28 U.S.
455(e). The transcript of the January 12 conference leave
doubt that such a disclosure occurred. The judge laid out
nature of his relationship with Petruccelli, citing book
verse. This disclosure was then followed by an unequi
statement on the part of Cargill's counsel, unprompted by
court, to the effect that Cargill did not object to the ju
continued service in the case. Local counsel reported t
developments to lead counsel immediately after the confer
ended, and Verner, Liipfert in turn promptly informed the cli
Yet, for nearly a month thereafter, Cargill failed to express
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discomfiture with the waiver.
Although we leave the ultimate question open
resolution on an end-of-case appeal, we think that l
counsel's unqualified assent, combined with Cargill's subse
silence for a substantial period of time, creates a st
foundation on which the validity of the waiver might rest,
that the resultant uncertainty undercuts Cargill's claim tha
is plainly entitled to the requested relief. After all, i
common ground that civil litigants ordinarily are bound by t
attorneys' tactical judgments, see, e.g., Brody v. Preside
___ ____ _____ ______
Fellows of Harvard Coll., 664 F.2d 10, 12 (1st Cir. 1
___________________________
(holding, on particular facts, that client would not be all
"to second guess his attorney's waiver"), cert. denied, 455
_____ ______
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11
1027 (1982), and waivers based on silence are standard fare,
e.g., United States v. Nobel, 696 F.2d 231, 237 (3d Cir. 1
____ _____________ _____
(finding waiver under 455(e) based on party's failure to ma
timely objection once the basis for disqualification was f
disclosed), cert. denied, 462 U.S. 1118 (1983). _____ ______
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However, Cargill asseverates that no valid waiver c
be given by its Maine counsel because the judge failed to fo
exactly the procedures governing waivers of disqualifica
dictated by the Code of Conduct for United States Judges (CC
adopted by the Judicial Conference of the United States follo
promulgation by the American Bar Association. See CC
___
reprinted in 150 F.R.D. 307 (1992). Canon 3D of the CCUSJ al
_________ __
a judge to hear a case if the parties and their lawyers agre
the judge's continued service not only after disclosure
certain bases for disqualification (including appearance
impropriety), but also after having been afforded "an opportu
to confer outside the presence of the judge[.]" Id. at
___
Here, what transpired at the disclosure conference met the f
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requirement of Canon 3D, but not the second.
However, even if we assume arguendo that
________
noncompliance rendered the original waiver ineffective,5 cou
____________________
5Although we need not decide the point, we doubt that e
instance of noncompliance with the CCUSJ automatically justi
post-hoc invalidation of a waiver that otherwise meets the
of section 455(e). Certainly, the case law on the point is
than transpicuously clear. See, e.g., Nobel, 696 F.2d at
___ ____ _____
(explaining that "it is sufficient under [section 455(e)] if
judge provides full disclosure of his or her relationship
time early enough to form the basis of a timely motion at
before trial and under circumstances which avoid any su
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thereafter had ample opportunity for consultation with
client, outside the presence of the judge, yet Cargill, kno
of the stated waiver, did not alter its position. When
judge's departure from the CCUSJ is weighed in the balance a
with his explanation and Cargill's knowing acquiescence in l
counsel's express waiver, the call seems to us to be quite cl
This closeness sets a chain reaction in motion. It leads
first to conclude that the contested waiver may well
enforceable, and constitutes, at the least, a potential stumb
block on the road to recusal. The first conclusion l
inexorably to a second conclusion: that petitioner has faile
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its endeavor to demonstrate that it is "clearly and indisputa
entitled to the relief that it seeks.
To be sure, Cargill has attempted to explain away
apparent ratification of the position taken by its local cou
both factually (through a series of affidavits) and le
(through its insistence on literal compliance with Canon
Its factual explanations and legal theories may or may not
water in the long run, but that is scarcely the point. We
not and do not decide the merits of the waiver questio
this juncture. It suffices for present purposes merely to
____________________
coercion"); Haire v. Cook, 229 S.E.2d 436, 438-39 (Ga. 1
_____ ____
(similar; construing Georgia law); Commonwealth v. Cagney,
____________ ______
N.E.2d 778, 781 (Mass. 1975) (Goodman, J., concurring) (simi
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construing Massachusetts law). Notwithstanding the importanc
attach to the CCUSJ and the obvious desirability of assu
judicial compliance with the canons, we think a strong argu
can be made that not all instances of noncompliance wit
CCUSJ are automatic disqualifiers.
13
that the issue is sufficiently clouded that petitioner's even
entitlement to the requested redress the district ju
recusal is problematic.6 See Pearson, 990 F.2d at 656 &___ _______
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Cooper, 821 F.2d at 834.
______
B
B
Petitioner suggests that recusal of a judge presen
special circumstance which, even in the absence of c
entitlement to the requested relief, warrants interlocu
review by way of mandamus. This suggestion is not wit
force.7 In cases in which parties have sought recusal base
assertions of actual bias, we have stated that "the issu
judicial disqualification presents an extraordinary situa
suitable for the exercise of our mandamus jurisdiction." I
United States, 666 F.2d at 694.
_____________
____________________
6Because we find no clear and indisputable entitlemen
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the requested relief, we need not consider whether Car
satisfied the second prong of the mandamus test by a showin
irreparable harm. We note, however, that although ther
always some harm in litigating for nought, that harm repeat
has been held insufficient, in itself, to justify man
relief. See, e.g., In re Bushkin Assocs., 864 F.2d 241, 24
___ ____ _____________________
(1st Cir. 1989).
7In the same vein, however, we can envision cases in w
despite a showing that ordinarily would amount to c
entitlement, a litigant has acted so deplorably that
petitioned court might choose to withhold discretionary rel
See generally Precision Instrument Mfg. Co. v. Automo
___ _________ _______________________________ _______
Maintenance Mach. Co., 324 U.S. 806, 814 (1945) (explaining
_____________________
the doctrine of unclean hands "closes the doors of a cour
equity to one tainted with inequitableness or bad faith rela
to the matter in which he seeks relief"); Texaco Puerto
_______________
Inc. v. Department of Consumer Affairs, 60 F.3d 867, 880____ ________________________________
Cir. 1995) ("It is old hat that a court called upon to do e
should always consider whether the petitioning party has acte
bad faith or with unclean hands.").
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Our rationale in these cases has been that "[p]u
confidence in the courts may require that such a questio
disposed of at the earliest possible opportunity." In re
_______
Leader Corp., 292 F.2d 381, 384 (1st Cir.), cert. denied,
____________ _____ ______
U.S. 927 (1961). However, we have cautioned that this philos
does not "commit us to entertaining every rejected affidavit
prejudice," and we have made it clear that, even when a man
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petition seeks a judge's recusal based on an assertion of ac
bias, mandamus remains "a discretionary writ." Id. Because
___
origins are equitable in nature, the writ should issue to re
a wrong, not to promote one and it should not "be grante
aid of those who do not come into court with clean han
United States v. Fisher, 222 U.S. 204, 209 (1911).
_____________ ______
In this case, principles of equity caution aga
exercising discretion to reach out for the disqualification i
here and now. To explain why, we must remind the reader
mandamus is a potent weapon. Precisely because the writ pac
considerable wallop, litigants are sometimes tempted to emplo
for its strategic value, regardless of the merits of their ca
See Allied-Signal, 891 F.2d at 970; In re Drexel Burnham La
___ _____________ _______________________
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Inc., 861 F.2d 1307, 1312-16 (2d Cir. 1988), cert. denied,
____ _____ ______
U.S. 1102 (1989). Ignoring this possibility when, as no
petition for mandamus seeks the disqualification of a j
shortly after the judge decides a major point against
petitioner would be to blink reality. In the real world, rec
motions are sometimes driven more by litigation strategies
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by ethical concerns.
In such straitened circumstances, appellate tribu
must be especially alert to the dangers of manipulation. Co
can ill afford to permit mandamus to be used as a tacti
jettison an impartial judge whose slant on a case, as evide
by his rulings, jeopardizes a party's chances for ulti
success. See In re United Shoe Mach. Corp., 276 F.2d 77, 79
___ _____________________________
Cir. 1960) ("We cannot permit a litigant to test the mind of
trial judge like a boy testing the temperature of the wate
the pool with his toe, and if found to his liking, decides
take a plunge.") (citation and internal quotation marks omitt
cf. Reilly v. United States, 863 F.2d 149, 160 (1st Cir. 1
___ ______ ______________
(explaining that "when a trial judge announces a proposed co
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of action which litigants believe to be erroneous, the par
detrimentally affected must act expeditiously to call the e
to the judge's attention or to cure the defect, not lurk in
bushes waiting to ask for another trial when their litiga
milk curdles"). By like token, courts cannot afford to spa
public perception that lawyers and litigants will benefit
undertaking such machinations.
This case runs up just such a red flag. While
record does not compel a finding that petitioner and its
attorneys delayed any attempt to retract Maine counsel's wa
as part of a plot to await the results of the judge's impen
decision, the chronology is suggestive. The scenario l
itself to the following description: Cargill, armed with all
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16
relevant facts no later than January 14 and knowing that
judge planned to decide the key motion in the case during
following week,8 held its "appearance-of-impropriety"
"invalid waiver" arguments in reserve, deferred any rec
initiative, awaited the ruling on the motion to dismiss, f
that ruling to be greatly disappointing, and then pulled
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recusal option off the shelf in hopes of locating a
sympathetic trier.
Of course, Verner, Liipfert tries strenuously
explain away this chain of events. The firm's attorneys
regaled us with descriptions of both their busy travel sche
and the inclement weather that struck the nation's capitol du
January of 1994. But even if we were to take these excuse
face value, they are simply not sufficient to justify the fi
decision to sit silently by until the judge had showed his ha
We believe it is self-evident that, once Cargill
aware of the details surrounding Petruccelli's relationship
the judge, it should at a bare minimum have told the court
it wanted time to rethink its options and sought a delay in
issuance of the court's opinion (which it knew to be immine
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In all probability, it would have taken no more than a telep
____________________
8The various affidavits submitted by the petitioner to
__________________
district court establish that on Wednesday, January 12, the
day that the disclosure conference was held, Pierce, At
informed Verner, Liipfert of what had transpired, includin
judge's plan to issue his decision in approximately one week.
corporate official was told of the situation no later
Friday, January 14.
17
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call or a facsimile transmission to place matters on ho
Thus, putting the most favorable face on the situation, it
apparent that Cargill and its lead counsel neglected to act
the immediacy that the circumstances obviously required.
Our need to exercise discretion also demands tha
take a related point into account. The case at hand is diffe
than our earlier precedents in several respects. First, it
not involve a claim of actual bias, and, thus, it lacks
important ingredient that in the past often prompted us
undertake review of judicial disqualification orders at
earliest practicable time. See Union Leader, 292 F.2d at
___ ____________
When issuing the writ is necessary to promote public confi
in the courts by avoiding the unseemly spectacle of trial be
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a biased judge, the need for immediate relief is manifest.
In re United States, 666 F.2d at 694. These concerns_____________________
lessened where, as here, there is neither a trace no
suggestion of actual bias. Second, in this case, the party
now claims to be aggrieved earlier had made an express waive
the stated ground for disqualification. This, too, changes
calculus of public perception.
Last, but far from least, petitioner's course
conduct whether conniving or merely slipshod influences
assessment of the equities. Its handling of the matter place
____________________
9Cargill suggests that it might have offended the jud
taking such action. We think its concerns are overbl
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lawyers run such a risk every time they seek a judge's recu
In any event, trial advocacy is no sport for the timorous.
18
between Scylla and Charybdis: if we do not entertain
petition, we run a risk of seeming hesitant to inquire too de
into a possible abuse of judicial power; yet, if we entertain
petition despite the appearance of sandbagging that Cargill
created, we run a risk of eroding public confidence in the co
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by seeming to reward a litigant for its gamesmanship.
Given the fundamental nature of mandamus, decli
jurisdiction in the exercise of our informed discretion s
preferable. Though it might be mere coincidence that the
in seeking to set aside the waiver worked to Cargill's advan
by allowing it to see which way the wind was blowing be
deciding whether to urge recusal, the appearance of ju
shopping is sufficiently pronounced that the equities cou
restraint. See, e.g., Apple v. Jewish Hosp. & Medical Ctr.,
___ ____ _____ ____________________________
F.2d 326, 334 (2d Cir. 1987) (noting that a "movant may not
back and wait, hedging its bets against the eventual outco
Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1
________ _____________
("Counsel, knowing the facts claimed to support a 45
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recusal for appearance of partiality may not lie in wait, rai
the recusal issue only after learning of the court's rulin
the merits."), cert. denied, 481 U.S. 1016 (1987). We si _____ ______
cannot afford to nourish the impression that the courts, a
institution, will bend over backward, overlook the obvious,
countenance sharp tactics merely because they are directed a
judge.
IV. CONCLUSION
IV. CONCLUSION
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We need go no further. Petitioner has neither met
conventional requirements for mandamus relief nor satisfie
that, in the unique circumstances of this case, the equi
favor an affirmative exercise of our discretion. Consequen
we deny the petition, without prejudice to Cargill's rig
raise its claim of error, if it so chooses, in an end-of-
appeal.10
The petition for a writ of mandamus is denied.
The petition for a writ of mandamus is denied.
_____________________________________________
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Appendix follows; dissenting opinion follows appendix
____________________
10Just as orders disqualifying or refusing to disqua
counsel "can be reviewed as effectively on appeal of a f
judgment as on an interlocutory appeal," Richardson-Merrill,
___________________
v. Koller, 472 U.S. 424, 438 (1985), we see no reason why or
______
pertaining to judicial disqualification cannot be effecti
reviewed at that time and in that manner. Nor is this scen
oddly configured. An end-of-case appeal is a matter of ri
while mandamus is a matter of discretion. Courts have freque
found that difference dispositive in analogous circumstan
See, e.g., Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33___ ____ ___________________ _____________
(1980) (per curiam); In re Bushkin Assocs., 864 F.2d 241,
______________________
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(1st Cir. 1989). And, moreover, the fact that a lengthy t
has intervened will not rob an appeal of its effectiveness.
e.g., Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1
____ _______ _____________
(vacating judgment on direct appeal following 35-day tr
despite the circuit court's earlier denial of mandamus relie
the same ground).
20
APPENDIX
APPENDIX
CHAMBERS CONFERENCE
CHAMBERS CONFERENCE
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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
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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
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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
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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
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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
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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:
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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.
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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
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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,
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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:
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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:
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[End of conference]
25
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CAMPBELL, Senior Circuit Judge, (dissentin
_______________________
While the question is exceedingly close, I regret that
cannot agree with the court. The court's opinion would
persuasive if written before the Judicial Conference of t
United States had adopted Canon 3D of the Code of Conduct f
________________
United States Judges. But the court's opinion seems to me
____________________
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pay too little attention to the district court's failure
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 whic
judge has sought the parties' waiver of his mandato
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disqualification under 455(a). Congress expressly allows
judge to accept a waiver of his disqualification under
455(a) (appearance of lack of impartiality) although n
under 455(b) (bias, personal knowledge of facts, financi
interest, etc.). See 28 U.S.C. 455(e). But while 455( ___
specifies no more than that such waiver be preceded "by
full disclosure on the record of the basis f
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disqualification," the judiciary is also subject to its o
Canon 3D which imposes additional conditions that were n
followed here. For that reason, I disagree that the parti
ever effectively waived the duty imposed by 455(a) that t
judge disqualify himself.
I make two points at the outset. First, as
colleagues seem to concede, the judge's employment, as
own lawyer, of the senior partner of the law fi
representing plaintiffs at the time he was considering
major dispositive motion in plaintiffs' lawsuit, gave rise
a reasonable question of his impartiality under 455(a
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While this was hardly a major indiscretion as such matte
go, it was the kind of conduct that gives rise to
appearance of impropriety. Our court is in appare
agreement as to the applicability of 455(a). Howeve
because the district court felt otherwise, and because t
issue deserves consideration, I have stated my reasons f
finding that 455(a) applies in an appendix to this dissen
Section 455(a) required the judge to disqualify himself s
sponte unless he received and accepted an appropriate wai
from the parties.
A second point is that the proceedings at t
January 12 conference at which the judge candidly a
commendably disclosed the matter omitted to follow Can
3D in basic ways. Canon 3D was developed to offset t
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27
criticism that otherwise disqualified judges someti
secured the parties' agreement to allow them to continue
cases by taking advantage of counsel's natural reluctance
offend a judge before whom they frequently had to appea
The original language of Canon 3D was drafted by a speci
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committee of the American Bar Association chaired by t
former chief justice of the Supreme Court of Californi
Justice Traynor. Justice Traynor emphasized that, before
valid waiver could occur, counsel must receive an opportuni
to confer with their clients outside the judge's presenc
The special committee also believed that the client as we
as counsel had to be involved in the waiver decision, as t
"parties are less likely than counsel to feel judici
pressure [to remain in the case] . . . ." Broadening a
___________
Clarifying the Grounds for Judicial Disqualificatio
__________________________________________________________
Hearing on S. 1064 Before the Subcomm. of Courts, Ci
__________________________________________________________
Liberties and the Administrative Justice of the House Co
__________________________________________________________
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on the Judiciary, 93d Cong., 2d Sess. (1974).
________________
The Canon serves in part to dispel counsel's sen
that by failing immediately to endorse the judge's continu
presence in the case, counsel might annoy the judge a
prejudice their cause. Under the Canon, counsel must
extended an opportunity to consider the disqualificati
issue outside the judge's presence, hence free from the fe
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that any hesitancy to endorse the judge's continued presen
may be personally held against him.
In the present case, the judge never stated t
local counsel was free to withdraw and discu
disqualification with his client and co-counsel. The ju
knew or should have known at this time that counsel had
prior opportunity to discuss the issue with his client. T
judge had not disclosed the subject of the conference
advance. Local counsel had made express inquiry the
previous as to what the January 12 meeting would be about a
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could learn nothing. Counsel, therefore, could not ha
discussed the issue with his client and lead counsel prior
_____
the meeting. When he came to the conference, local couns
had to react on the spur of the moment, without knowing w
rights the judge was prepared to recognize, without knowi
whether the judge would recuse himself if counsel objecte
and without reassurance from the court that, without offens
local counsel would be given a chance to consider this matt
with his client outside of the court's presence. The expre
language of the Canon, conditioning a waiver upon
opportunity to confer with the parties and counsel outsi
the judge's presence, was not, in these circumstances, p
into play.
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In hindsight, to be sure, local counsel could ha
sought to save the situation by requesting time to talk
-29-
29
lead counsel and his client a request the judge indicat
he would have granted. However, without the judge's advan
advice, counsel would not necessarily be expected to know
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his rights under Canon 3D, or indeed to know that Canon
existed at all. Moreover, counsel may have felt that, whe
the judge stated that the disclosed conduct would not affe
his ability to decide the case, and indicated no cle
willingness to withdraw, any hesitancy would simply be
irritant. The duty to extend the benefits of this Canon
the parties rests upon the judge. Here the judge did n
mention the provisions of the Canon nor indicate what rig
he would recognize.
In such circumstances, I think it plain that
waiver occurred on January 12. In fact, the scenario at t
January 12 conference was exactly the one that Canon 3D
intended to change. The drafters of Canon 3D thought that
judge who simply announced disqualifying facts, indicated
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desire to continue to serve, and solicited and accepted or
waivers from the attorneys present, might be exercisin
"velvet blackjack." Broadening and Clarifying the Groun
____________________________________
for Judicial Disqualification: Hearing on S. 1064 Before t
__________________________________________________________
Subcomm. of Courts, Civil Liberties and the Administrati
__________________________________________________________
Justice of the House Comm. on the Judiciary, 93d Cong.,
_____________________________________________
Sess. (1974). Canon 3D, by requiring discussion with t
clients outside the judge's presence and, by requiring t
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clients' acquiescence as well as that of counsel, sought
ease the pressures to acquiesce that inhered in the "ol
process.
It is true that the Code of Judicial Conduct is n
statutory, nor does the Judicial Conference of the Unit
States which adopted the Code hold a specific statutory gra
of authority to enact binding ethical rules. However, t
Conference is itself a creature of statute. See 28 U.S.C.
___
331. Chaired by the Chief Justice, the Conference is the o
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body recognized as speaking administratively for the enti
federal judiciary. Its adoption of Canon 3D, I sugges
gives the Canon great persuasive weight. Additionally, t
provisions of Canon 3D emanated from a model ethical co
drafted by the American Bar Association and adopted in one
another version, by many states. It is important, I thin
to our institutional credibility, that the procedures set o
in Canon 3D of the Code of Conduct for United States Jud
be taken seriously.
As, in my view, no waiver occurred by force
local counsel's acquiescence on January 12, the questi
arises whether some kind of de facto waiver or equitable b
should be implied from Cargill's failure to object prompt
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to the judge's continued participation once its local couns
had told it of the judge's disclosures. Cargill also learn
at the January 12 conference that the judge was about to ha
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31
down his ruling. If Cargill did not want the judge
participate, my colleagues believe that Cargill was requir
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to protest then and there, rather than strategically waiti
to see how the wind blew, objecting as it did on
after the judge had ruled against it.
This is a close question. There is certain
weight to my colleagues' view that Cargill may be misusi
the Canon now for purely strategic purposes. It can
implied, moreover, that the district court having ful
revealed the conduct in question, sincerely, if incorrect
under the Canon, relied on local counsel's approval, n
withdrawn, as sanctioning the court's continuance in t
case. But while reasonable minds may differ, I believe t
the court's failure to follow Canon 3D's waiver procedures
clouded future events as to make it inappropriate to read t
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much into Cargill's failure to challenge the judge
continued participation during the week prior to the court
ruling on the motion. A primary purpose of the procedu
outlined in the Canon is to remove, or at least to lesse
the pressure of the judge's feared resentment if a waiver
not quickly volunteered. This lessening of pressure wou
not have happened here. The Canon anticipates that the cou
will reassure attorneys in advance of their right to speak
their clients out of the judge's presence. Also that t
judge will inform counsel that he will withdraw if waiver
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not granted, or, at least, of his intentions in this regar
In the present case, by the time Cargill learned of t
judge's stated grounds for disqualification, the judge
already made the decision not to recuse himself. At t
point, Cargill had no assurance that its repudiation of loc
counsel's acquiescence would be honored. It had to deci
whether to risk angering the judge futilely at a time w
the matter seemed to have been settled and a decision on i
motion was imminent.
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To be sure, Cargill's local counsel could ha
acted differently. It is often true and properly so
that a client is bound by positions taken or not taken by
attorney. Canon 3D makes it clear, however, that attorn
acquiescence, standing alone, is not enough to constitute
waiver. Local counsel's acquiescence followed by Cargill
reluctance to object cannot be disassociated from the judge
initial failure to implement the Canon provision
provision that the judge himself is responsible f
explaining and implementing in the first instance. Canon 3
setting out the requirements for a judge to secure a val
waiver of his own disqualification, is not mere grist for t
adversarial mill. Rather, it is a rule of conduct the ju
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is supposed to know and apply. While Cargill's counsel mi
have saved the situation, responsibility for the error shou
not too easily be shifted to the shoulders of one of t
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33
parties. Given the altered situation confronting Cargi
once the die had been cast on January 12, I am not dispos
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to find that Cargill ratified local counsel's earli
acquiescence simply by taking no action before the court
decision.
Cargill, to be sure, had to act diligently if
wished to challenge the judge. Delay would soon beco
unfair to Cargill's opponent, who would continue to inve
money and effort into the lawsuit in reliance upon t
continued service of the judge in question. But Cargill
raising of an objection within a month after the decisi
seems to me to be acceptable given that the initial error
that of the judge, not Cargill. In so saying, I recogni
the validity of my colleagues' concern that Cargill may we
be acting strategically, and that courts are, and should b
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reluctant to allow two bites at the apple. But against t
must be weighed the nonobservance of Canon 3D.
As 455(a) applied and, in my view, no sufficie
waiver occurred under 455(e), the question of reme
arises. In Liljeberg v. Health Serv. Acquisition Corp., 4
_________ ______________________________
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
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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 (1
________ _________________________
Cir. 1989).
For a new judge to be brought in at this junctu
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would not, in my view, be a draconian remedy, nor a licen
for unwarranted attacks on courts. To be sure, the questi
that arose here the judge's brief use of the senior l
partner in the same law firm retained by plaintiffs
not monumental and quite likely would have been waived
Cargill in a proper proceeding. Moreover, evidencing
integrity, the judge quickly called a conference and reveal
all the relevant facts. Nonetheless, the judge's retenti
of Mr. Petruccelli at the time of the pending lawsuit
create the appearance of lack of impartiality; and secti
455(a) required the judge to step aside unless he recei
proper waivers from the parties. As this did not occur her
and as the case is still at an early stage, I think it wou
be reasonable for another judge to enter the case. Whi
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this imposes some small price on the court and plaintiffs,
is justified as demonstrating the need to observe the Cano
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35
I would add that, had mandamus requiring a n
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judge been granted, it would have been open to this court
let stand the former judge's ruling on Cargill's dismiss
motion. Whether to do this would have been a close questio
but, however that issue were resolved, the bringing in of
new judge would have emphasized that Canon 3D procedures a
not precatory.
I do not take too seriously my colleague
suggestion that this issue may be revisited several yea
down the road on direct appeal from any final judgme
rendered in plaintiffs' favor. By then there would
overwhelming equities in plaintiffs' favor not to requi
___
them to undergo the expense and burden of retrying the ca
before a different judge. The Supreme Court has stated "t
in determining whether a judgment should be vacated for
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violation of 455(a), it is appropriate to consider the ri
of injustice to the parties." Liljeberg, 486 U.S. at 86
_________
Mandamus has been properly recognized as the usual and prop
remedy for raising and resolving promptly a question
judicial disqualification such as this. See, e.g., Alexan
___ ____ ______
v. Primerica Holdings, Inc., 10 F.3d 155 163 (3d Cir. 1993
________________________
In re United States, 666 F.2d 690, 694 (1st Cir. 1981).
____________________
would expect that the court's decision, which has be
rendered after the most careful consideration by all membe
of the panel, will end the matter.
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Appendix to Judge Campbell's Dissent
Appendix to Judge Campbell's Dissent
For the following reasons, I conclude that t
judge's relationship with Mr. Petruccelli required him
recuse himself under 28 U.S.C. 455(a) absent receipt of t
parties' waiver. That statute provides that a judge "sha __
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disqualify himself in any proceeding in which
impartiality might reasonably be questioned." (emphas
_________________
supplied). The legislative history indicates that secti
455(a) was meant to lessen the traditional "duty to sit
and, as the Supreme Court has indicated, to requi
avoidance of even the appearance of partiality. Liljeberg
_________
Health Serv. Acquisition Corp., 486 U.S. 847, 860-61 (1988
______________________________
Recusal may be required even in the absence of actu
partiality if there is an objectively reasonable basis f
doubting the judge's impartiality. Id.; see Code of Judici ___ ___ _____________
Conduct Canon 2 (1973) ("[A] judge should avoid improprie
_______
and the appearance of impropriety in all his activities. __________________
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(emphasis supplied). The Committee on the Codes and Condu
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______
Judiciary Policies and Procedures V-25 (1993).
_________________________________
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The proper standard for ascertaining whether
judge's impartiality might reasonably be questioned under
455(a) is whether the charge of lack of impartiality
grounded on facts that would create a reasonable doubt, n
in the mind of the judge, or even necessarily that of t
litigant, but rather in the mind of the reasonable perso
See United States v. Cowden, 545 F.2d 257, 265 (1st Ci
___ _____________ ______
1976), cert. denied, 430 U.S. 909 (1977). Section 455(
____________
requires a contextual, case-by-case analysis. It does n
imply a bright-line rule disqualifying any judge who ever
personal dealings with an attorney whose firm represen
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litigants before the same judge. The existing case law
the subject of judge-attorney dealings rests on exceedin
fact-specific judgments, with different outcomes in differe
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 (5
__________ _______________________
Cir.), cert. denied, 449 U.S. 820 (1980); Texaco v. Chandle
____________ ______ ______
354 F.2d 655 (10th Cir. 1965), cert. denied, 383 U.S. 9
____________
(1966); Rapp v. Van Dusen, 350 F.2d 806 (3d Cir. 1965); In
____ _________ __
Snowshoe Co., 137 B.R. 619 (D. W. Va. 1991), aff'd mem., 9
____________ __________
F.2d 639 (4th Cir. 1992); Carbana v. Cruz, 595 F. Supp. 5
_______ ____
(D.P.R. 1984), aff'd mem., 767 F.2d 905 (1st Cir. 1985 ___________
Miller Indus., Inc. v. Caterpillar Tractor Co., 516 F. Sup
___________________ ________________________
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84 (D. Ala. 1980); Smith v. Sikorsky Aircraft, 420 F. Sup
_____ _________________
661 (C.D. Cal. 1976). See also Varela v. Jones, 746 F.
_________ ______ _____
1413 (10th Cir. 1984); S.J. Grove & Sons Co. v. I.B.T., 5
______________________ ______
F.2d 1241 (7th Cir. 1978); United States v. Equifax, Inc
_____________ ___________
557 F.2d 456 (5th Cir. 1977), cert. denied, 434 U.S. 10
____________
(1978); In re Georgetown Park Apt., 143 B.R. 557 (Bankr. 9
__________________________
Cir. 1992). Cf. In re Allied-Signal, Inc., 891 F.2d 974 (1
___ _________________________
Cir. 1989).
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Having said this, certain principles seem clear.
judge would ordinarily be disqualified to sit by 455(a)
an attorney in the case before him or her were, at the sa
time, actively representing the judge in a personal matte
See 13A Charles Wright, Arthur Miller & Edward Coope
___
Federal Practice and Procedure 3549 at 614 (1984); c
________________________________
Potashnick, 609 F.2d at 1110-12; Texaco, 354 F.2d at 65
__________ ______
And while the situation is more attenuated where the judge
being personally represented not by the same attorney but
someone else in the attorney's firm, the latter situation
at least cause for concern, as there can be no doubt that,
many factual situations, such overlap can create t
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appearance of partiality calling for withdrawal under
455(a). The members of the Judicial Conference Committ
advising judges as to the proper interpretation of the Co
of Conduct have said as much. See 2 Guide to Judicia
___ ________________
Policies and Procedures, supra, at V-25.
_______________________ _____
Weighing all the factors in the present case
which I entertain no doubt whatsoever as to the judge
personal integrity I nonetheless believe that
reasonable person viewing all the circumstances might ha
questioned the impartiality of the judge. The judge's ruli
to the contrary was, I believe, an abuse of discretion. S
In re United States, 666 F.2d 690, 697 (1st Cir. 1981)
_____________________
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federal judge's decision on whether to recuse himself
herself is committed to that judge's sound discretion).
The judge received personal legal services from t
senior partner of Petruccelli & Martin, a small eight-memb
firm, close to the time the court ruled upon a dismiss
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motion that, had it been resolved for Cargill, would have p
Petruccelli & Martin's client out of court. The problem
not simply that by personally retaining Mr. Petruccelli, t
judge indicated he had high regard for the latter
professional abilities. Judges may and often do, wi
propriety, indicate respect for an attorney's competenc
Here, however, by retaining the senior partner of this sma
firm for personal legal advice while having under adviseme
a dispositive motion in a case being handled by other membe
of the firm, the court gave the appearance that he may ha
had a particular affinity for that firm and perhaps so
close and special relationship. Other attorneys in the sa
case could reasonably have been offended by what might ha
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appeared, from the outside, to have been a confidenti
relationship between the judge and Mr. Petruccelli at t
particular time. Also, even after the ending of the judge
own attorney-client relationship, an outside observer mi
wonder if, in some manner, consciously or unconsciously, t
judge's appreciation for a job well done by plaintiff's l
firm might possibly affect his handling of the pending case
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The judge's brief attorney-client relationship wi
Mr. Petruccelli ended, it is true, before the judge
decision in the case against Cargill. The judge, howeve
had worked on Cargill's motion during the period of t
relationship. Moreover, the relationship ended only ten da
before the decision a period too short to insulate t
two events from one another. Any appearance of partiali
that existed prior to the time the representation ceas
cannot be meaningfully separated from the court's decision
January 19.
It is important to emphasize that 28 U.S.C.
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455(a) is concerned with the appearance of impartialit
__________
Liljeberg, 486 U.S. at 860-61. Disqualification for actu
_________ ___
personal bias or prejudice is separately covered by
455(b)(1). The judge seems to have overlooked the appearan
aspect of the statute when he emphasized at the January
conference his moral certainty that his handling of the ca
would not be affected by the relationship with
Petruccelli. The question was not just whether he was bias
or prejudiced, but whether his impartiality might reasonab
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-41- 41
be questioned, a related but different matter.12 Accordi
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
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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
_________
1974 U.S.C.C.A.N. 6351.
To be sure, the drafters of the statute were al
concerned, as are my colleagues here, that the statute not
____________________
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12. Section 455 was completely rewritten by Congress in 19
so as to conform with the then-new Code of Judicial Condu
______________________
which the Judicial Conference of the United States
adopted in 1973 as being applicable to all federal judge
Section 455 was amended so as nearly to duplicate the Code
Canon 3C, with the intention that federal judges "would
longer be subject to dual [i.e.] Code and statutory standar
governing their qualification to sit in a particul
proceeding." H. Rep. No. 93-1453, 93d Cong., 2d Ses
(1974), reprinted in 1974 U.S.C.C.A.N. 6351. The Code
____________ ____
Judicial Conduct was drafted under sponsorship of t
__________________
American Bar Association by a committee chaired by for
California Chief Justice Roger J. Traynor. The ot
committee members included Justice Potter Stewart of the U.
Supreme Court, Judge Irving R. Kaufman of the U.S. Court
Appeals for the Second Circuit, and Judge Edward T. Gigno
of the U.S. District Court for the District of Maine.
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used by litigants for purely strategic purposes. The Hou
Report cautions that the new test should not be used
judges to avoid sitting in difficult or controversial case
Disqualification for lack of impartiality must always have
reasonable basis." Id. (emphasis in original).
__________ ___
Yet the question at issue is, objectively, whet
___________
the circumstances reasonably gave rise to a question of t
judge's impartiality. If so, the judge shall disquali
_____
himself. An express purpose of the 1974 rewrite of 455
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to abandon the subjective standard of the older statut
which had depended largely on the judge's personal view
whether he or she could behave impartially. Unfortunatel
the circumstances here created a situation where a reasonab
observer could entertain doubts as to the judge
impartiality. The judge himself obviously had concerns abo
the appearance of what had happened, leading him to call t
conference of January 12 for the purpose of disclosing w
had transpired. That a question of the judge
impartiality under 455(a) existed does not mean that t
judge committed a serious impropriety. The judge explain
that he did not immediately focus on the fact that
Petruccelli's firm, partners and associates were involved
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the case pending before him. Once aware, the ju
commendably disclosed the relationship. This action spea
loudly as to the judge's personal integrity. The fa
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remains, however, that a reasonable observer cou
objectively question the judge's impartiality in t
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particular circumstances. The judge was, therefore, requir
to remove himself unless he had received the parties' waive
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