FOURTH ISSUES REMARKABLE RECUSAL/PRO HAC VICE OPINION
[Posted May 13, 2011] I enjoy the writing style of several particular jurists, and Judge Jay Wilkinson of the Fourth Circuit is among those. Today he authors a remarkable opinion that was, for me a least, a page-turner (well, actually a scroll-downer, since I declined to slay any trees to read it). The case is Belue v. Leventhal, a fascinating story of an ill-advised motion and the judges ill-advised reaction to it.
Have you ever filed a motion to recuse the judge for bias? No? Well, me, neither. This case, arising in the District of South Carolina, apparently involved a federal judge with a temper. When his Honor expressed some disparaging views about the defendants in an insurance suit, the defense lawyers responded by filing a motion asking him to recuse himself. The motion was signed by the defendants out-of-state counsel, who had traveled all the way up from
Theres a line from the best chapter of one of my favorite Twain books, Life on the Mississippi, that applies here: This was a red rag to the bull. At a hearing the next day, before the aforesaid temper was allowed to calm down, the judge threatened to disbar the whole firm in
I permitted those people to come in as a matter of grace, a matter of discretion. And now they have violated it. And Im not going to let them stay. All they want to do is file papers, file papers, file papers. And then run out of this courtroom, go back to
Ohhhh-kaaaaaay . . .
The problem with this ruling is that pro hac vice admissions arent matters of grace; not anymore, anyway. Once upon a time, foreign lawyers really did appear at the sufferance of the judge; but modern practice provides that once a lawyer has been admitted for a particular case, he or she has the same right to appear as does a regularly admitted member of the bar of that court. The lawyers accordingly appealed their disqualification after the underlying case had resolved, contending that the judges action was hurting the firms marketing efforts.
There are two appellate issues here. The court first takes up the sensitive topic of what grounds are appropriate for a motion to recuse. This is an excellent primer on the caselaw that governs such motions, and any lawyers who are really, really determined to file such a motion should read this opinion carefully. Basically, you have to show that the judge is biased, not against the lawyers, but against the party. Apparently a jurist can hate a lawyers guts, but still preside over a case involving that lawyer.
When you think about it, that really has to be the case; otherwise, a litigant could avoid a particular judge merely by associating a lawyer that the judge is known to despise. You cant judge-shop like that. Todays ruling makes it clear that there can come a point at which judicial antipathy toward a lawyer spills over onto the client, but that didnt happen here.
The court accordingly decides that the recusal motion was meritless. But thats just phase 1 of todays opinion, since this appeal is about whether the district court properly cut the pro hac vice lawyers off from the case. The Court of Appeals today rules that the district judge denied the lawyers due process of law by essentially kicking them summarily out of his courtroom. They were given no advance notice of the particulars of their sins, and no meaningful opportunity to respond to the charges. The amount of process thats due in this situation is slight, but the court rules today that these attorneys werent even given that degree of protection.
Over the course of the opinion, theres plenty of blame to spread around, although that blame is softened considerably by the courtly Judge Wilkinsons gentle approach. The lawyers had no reasonable ground to file the motion, seemingly driven by a fear of losing on the merits; and the judge made remarks that were neither wise nor temperate. In such a situation, having decided to reverse, whats an appellate court to do with the combatants send them back into the arena for Round 2, where the judge can conduct another hearing, this time adhering to the Due Process Clause? No, the Fourth Circuit has a much more elegant solution than that:
While our normal ruling might be to remand the case with directions for the provision of appropriate process, we can see little to be gained by such a course. The case has now been resolved, and we therefore vacate the revocation order and remand the case with directions that the matter be concluded forthwith.