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Federal Courts Adopt a New Rule to Reduce Unscrupulous Recusal Trawling

The Judicial Conference of the U.S. has implemented a new rule for federal courts of appeals that would make it more difficult for attorneys to file briefs aimed at yielding a strategic recusal.

To understand the new rule, which states, “a court of appeals may prohibit the filing of […] an amicus brief that would result in a judge’s disqualification,” take this example:

Say you are a judge sitting on the Fourth Circuit and are about to hear a case involving a publicly traded company, and let’s call it AT&T v. Doe. If you as a judge own AT&T stock, by law you are disqualified from hearing the case.

But Judicial Conference has said in an ethics advisory opinion (no. 63) that if you own Cisco stock and Cisco submits amicus brief, you should also recuse.

The thinking that prompted the new rule is that unscrupulous attorneys would strategically file a brief (in this example, a brief on behalf of Cisco) in order to game who’d have recuse – maybe a judge that a company perceives is likely to be unfriendly to their side.

Now the Judicial Conference is saying you may not file that brief at the appeals stage, whether before a panel or a court sitting en banc.

Of course, we don’t think judges should own individual stocks, but if they must, this solution is a positive for the promotion of judicial integrity.

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