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 judge’s 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 Miami.

 

There’s 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 Miami” at an upcoming hearing. (It probably didn’t help that the law firm’s website advertised that its lawyers dealt with “cases involving difficult jurisdictions” or “trouble spot jurisdictions.”) His Honor didn’t give any further details, but at that next hearing, five days later, he lowered the boom after giving one of the Florida lawyers the briefest opportunity to speak:

 

I permitted those people to come in as a matter of grace, a matter of discretion. And now they have violated it. And I’m 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 Miami and say, we won another one in a difficult jurisdiction. That’s the kind of lawyers they are. I don’t want anything to do with them, or anybody of that same ilk. I think they are a disgrace to the profession. You can appeal it.

 

Ohhhh-kaaaaaay . . .

 

The problem with this ruling is that pro hac vice admissions aren’t 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 judge’s action was hurting the firm’s 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 lawyer’s 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 can’t judge-shop like that. Today’s ruling makes it clear that there can come a point at which judicial antipathy toward a lawyer spills over onto the client, but that didn’t happen here.

 

The court accordingly decides that the recusal motion was meritless. But that’s just phase 1 of today’s 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 that’s “due” in this situation is slight, but the court rules today that these attorneys weren’t even given that degree of protection.

 

Over the course of the opinion, there’s plenty of blame to spread around, although that blame is softened considerably by the courtly Judge Wilkinson’s 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, what’s 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.”

 

This opinion is noteworthy for the subject matter, with its subtext of near-warfare in the well of the court; and for Judge Wilkinson’s marvelous prose in addressing the issues and the touchy facts. Many lawyers will want to read it merely because stories like this are like accident scenes; you just find yourself powerless to look away, particularly when the combatants are the lawyers and the judge, not the clients. In any event, click on the hyperlink and read it . . . but only for the education you’ll get; not for the gory details, of course . . .