Recusal, also referred to as judicial disqualification, is the process of a judge stepping down from presiding over a particular case in which the judge may have a conflict of interest. Title 28 of the United States Code (the “Judicial Code”) provides standards for judicial disqualification or recusal.

The official rule states that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Both federal and state law holds that judges must recuse themselves if there are grounds to do so. Depending on the circumstances, judges are subject to punishment for not recusing themselves.

Why Would a Judge Step Down or Recuse Themselves from a Case?

The reason for recusal is simple, a judge has a duty of fairness when imparting justice and making judgements as they preside over a case. Thus, at the time a judge learns of their assignment to a case, the judge should review the facts of the case and decide whether there are any conflicts of interest regarding the case that would prevent them from being able to be impartial, ethical, and fair. Some examples of conflicts of interest where a judge should likely recuse themself from the case include:

  • Personal Connection to One of the Parties to the Case: For example, if the judge is a neighbor, best friend, or has another personal connection with someone on either side of a lawsuit, their impartiality would come into question. Thus, that judge should recuse themself from the case;
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  • Personal Knowledge of the Facts of the Case: For instance, if a judge was previously handling a case as either lead attorney or as an attorney in a firm that was handling the case, and they have now become a judge and that case lands in their court, the judge should recuse themself from the matter.  
    • One such example of this occurring was Justice Elena Kagan’s recusal in the Fisher v. University of Texas Supreme Court case. In that case, Justice Kagan’s former role as the Solicitor General combined with her knowledge of higher education admissions and connection with the original lead counsel, was enough for Justice Kagan to recuse herself from the case;
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  • Familial Relationship to One of the Attorneys: Simply put, if your husband,wife, or significant other is legal counsel for one side of the case, your fairness or impartiality will surely come into question. Thus, the judge should recuse themself immediately;
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  • Financial Interest in the Result of the Case: Imagine a scenario where a judge has stock in a company that stands to profit from winning a lawsuit. In that scenario the judge holds a personal financial interest in the result of the case, and, thus, should recuse themself from the matter.
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In summation, if a judge determines that there exists a conflict, such as those listed above, then the judge should decide whether they need to recuse themself from the case. In some jurisdictions, this decision is left up to another judge that makes the decision as to whether the presiding judge should be prohibited from hearing the case. Additionally, any party to a case, plaintiff or defendant, may make a motion to have the judge recuse themself from the case.

If a judge’s decisions not to recuse themself was accidental, then there is not likely to be any penalty. For example, if a judge is unaware that proper grounds exist for recusal, then the error will probably be considered harmless. However, if a judge fails to recuse himself or herself from a case where proper grounds clearly existed for recusal, then there may be penalties levied against them.

What are the Consequences of Judges Not Recusing Themselves When Necessary?

If a judge declines recusal even though they were aware that proper grounds existed, then there may be significant repercussions. First, the result of the case can be reviewed by an appellate court, and an entirely new trial may be ordered. This means that the judge’s decision regarding a criminal conviction or monetary award may be reversed or set aside.

Second, a judge who refuses recusal when necessary may be further reprimanded or disciplined. Although disciplinary measures vary by jurisdiction, one such disciplinary measure includes the judge losing their law license, otherwise known as disbarment.

Should I Hire an Attorney If I Believe there is Judicial Misconduct?

If you believe that you are facing a situation where there is or has been judicial misconduct, then you should absolutely consult an attorney. As can be seen, judicial misconduct is a serious issue that may significantly alter the delivery of justice and fairness in a lawsuit.

An experienced and well qualified malpractice attorney or criminal law attorney can help you determine whether or not you’re a victim of judicial misconduct. Additionally, an attorney can file an appeal on your behalf and help guide you through the process of getting your sentence or the entire case thrown out.