The Disqualification of Judges in Divorce Mediation
Background
When a judge and their spouse engage the services of a law firm to mediate their divorce negotiations, a question arises as to whether the judge becomes disqualified from all matters where the law firm appears. The answer is yes, subject to remittal, and the disqualification lasts while the mediation relationship is ongoing and for two years after the mediation relationship ends and all fees are paid.
Legal Implications
The disqualification of a judge who has used a law firm for divorce mediation is an important ethical issue. The American Bar Association’s Code of Judicial Conduct states that a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including in cases where the judge’s spouse is a party to the proceeding or has a financial interest in the outcome of the proceeding. The use of a law firm by a judge and their spouse for mediation services creates a similar appearance of bias or conflict of interest, which could call into question the judge’s impartiality in any case where the law firm appears – not just those related to the divorce.
Remittal
The disqualification may be waived if all parties agree in writing that the judge should not be disqualified. This is known as “remittal.” However, even when all parties consent to remittal, the question of impartiality may remain. Therefore, judges should exercise caution when seeking mediation services from law firms or other legal professionals.
Key Takeaways
- A judge who jointly hires a law firm for divorce mediation with their spouse is disqualified from all matters where the law firm appears, subject to remittal.
- The disqualification obligation lasts while the mediation relationship is ongoing and for two years after the mediation relationship completely ends and all fees are paid.
- Remittal may be agreed upon in writing by all parties, but caution should be exercised to avoid any appearance of bias or conflict of interest.
Related Articles
Keywords
- disqualification of judges
- divorce mediation
- remittal
- ethical issues
- impartiality
- conflict of interest
Originally Post From https://www.law.com/newyorklawjournal/2024/07/09/judicial-ethics-opinion-23-150/
