Wednesday, February 12, 2014

MINNESOTA BOARD ON JUDICIAL STANDARDS ADVISORY OPINION 
2013–2 
 Issue. “Under what circumstances is disqualification required when a judge has or has had a
professional but non-financial relationship with a lawyer or law firm appearing before the judge on a currently
pending matter?”
 Authorities. The principal authorities for this opinion are Rule 2.11(A)(5)(a) and (b), and Comments [1]
through [5] to that Rule. Unless otherwise noted, all references to Rules and Comments are to those in the
Minnesota Code of Judicial Conduct (2009) (“Code”).
 Other authorities include Rule 1.2, and comment 3; Canon 2, Rule 2.2, and comment 1; cases decided
by the Minnesota Supreme Court and Minnesota Court of Appeals; ABA Annotated Model Code of Judicial
Conduct (2012 edition); and ABA Formal Opinion 07-449 (2007).
 The Comments serve two functions: (1) they provide “guidance regarding the purpose, meaning, and
proper application of the rules,” and (2) they identify “aspirational goals for judges.” Code, Scope.
 Authority to Issue Advisory Opinions. “The board may issue advisory opinions on proper judicial
conduct with respect to the provisions of the Code of Judicial Conduct. * * * The advisory opinion shall not be
binding on the hearing panel or the Supreme Court in the exercise of their judicial-discipline responsibilities.”
Rules of the Board on Judicial Standards, Rule 2(a) (2009).
 Where the Rules or Comments use a permissive term such as “may” or “should,” the intent is not to
create a mandate for action. Rather, the conduct being addressed or action being considered “is committed to
the personal and professional discretion of the judge.” In re Jacobs, 802 N.W.2d 748, 754 (Minn. 2011).
 Nonetheless, Board advisory opinions will often advise judges of what they should do, as well as what
they must do.
 ADVISORY OPINION
 Code Provisions. The Code contains several principles which are directly relevant to the issue
addressed in this opinon. First, the basic rule is that a “judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be questioned.” Rule 2.11(A).
 Second, the basic rule requiring disqualification applies if “the judge served as a lawyer in the matter in
controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during
such association.” Rule 2.11(A)(5)(a).
 Third, the rule for judges whose experience as a lawyer includes prior governmental service is virtually
identical, with an additional provision requiring disqualification if the Judge, while in government service as a
lawyer, “expressed an opinion concerning the merits of the particular matter in controversy.” Rule
2.11(A)(5)(b).
 Fourth, a judge’s obligation not to hear or decide matters in which disqualification is required applies
regardless of whether a motion to disqualify is filed. Rule 2.11, cmt. 2.
 Fifth, a judge should disclose on the record information which the parties or their lawyers might
reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no
basis for disqualification. Rule 2.11, cmt. 5.
 Finally, an objective “reasonable examiner” standard applies. The test is whether “an objective,
unbiased layperson with full knowledge of the facts and circumstances” would reasonably question the judge’s
impartiality. State v. Pratt, 813 N.W.2d 868, 876 (Minn. 2012).
Prior Code and Comments. Canon 3.D(1)(b) of the pre-2009 Code contained language similar to that
now found in Rule 2.11(A)(5). However,two changes in the Code and Comments are noteworthy.
First, the 2009 Code provides, “A judge shall hear and decide matters assigned to the judge, except
when disqualification is required by Rule 2.11 or other law.” Rule 2.7. The prior Code included a similar
provision. Canon 3(A)(1). However, the 2009 Code also includes a Comment that has no counterpart in the
prior Code. See Rule 2.7, comment 1, which reads as follows: First, the 2009 Code provides, “A judge shall hear and decide matters assigned to the judge, except
when disqualification is required by Rule 2.11 or other law.” Rule 2.7. The prior Code included a similar
provision. Canon 3(A)(1). However, the 2009 Code also includes a Comment that has no counterpart in the
prior Code. See Rule 2.7, comment 1, which reads as follows:
Although there are times when disqualification is necessary to protect the rights of litigants and
 preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges
 must be available to decide matters that come before the courts. Unwarranted disqualification may
 bring public disfavor to the court and to the judge personally. The dignity of the court, the judge’s
 respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed
 upon the judge’s colleagues requires that a judge not use disqualification to avoid cases that present
 difficult, controversial or unpopular issues.

First, the 2009 Code provides, “A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.” Rule 2.7. The prior Code included a similar provision. Canon 3(A)(1). However, the 2009 Code also includes a Comment that has no counterpart in the prior Code. See Rule 2.7, comment 1, which reads as follows: Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues requires that a judge not use disqualification to avoid cases that present difficult, controversial or unpopular issues.