Richard E. Flamm, author of the nationally-acclaimed treatise, Judicial Disqualification: Recusal and Disqualification of Judges, provides a thorough presentation of this important area. Topics include the origins of Recusal and Disqualification, federal statutes, disqualification based on bias or its appearance or on a judges interest or relationship (familial, social, law clerks, gifts, campaign contributions) and other reasons. Mr. Flamm candidly assesses the tactical nature of the motion, noting the old adage, "Never shoot at an Emperor and miss." Materials include cases from numerous jurisdictions.

Recorded January 8, 2008

I. INTRODUCTION TO RECUSAL AND DISQUALIFICATION
-Origins of Judicial Disqualification
-Most jurisdictions regulated by statute
-Talmudic origins, Roman Law, Common Law
-Federal Statutes: Clement Haynsworth, Samuel Alito, Tom Delay, O.J. Simpson and other cases involving Judicial Disqualification
-Recusal and Disqualification distinguished
-Inherent difficulties in disqualifying judges. Due Process Clause. Opinions by Court regarding recusal are rare.
II. DISQUALIFICATION FOR BIAS AND THE APPEARANCE OF BIAS
-What is bias? "Impartiality is the cornerstone of the American legal system."
-Personal bias
-Extrajudicial Source Doctrine
-Liteky test: Liteky v. United States, 114 S. Ct. 1147(1994) Difficult standard.
-Appearance of Bias
-Reasonable person test
-Reasonable outside observer test
-Judge decides: rarely reversed. Negative consequences of losing motion.
III. DISQUALIFICATION BASED ON INTEREST OR RELATIONSHIP
-Disqualifying interests generally: origins
-Rule in United States: Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927) Generally, pecuniary/stock.
-Familial relationships: relationships by degree, degrees of consanguinity.
-Social relationships
-Law clerks
-Gifts and bribes as basis for disqualification of judge.
-Campaign contributions/election of judges.
IV. OTHER BASES FOR DISQUALIFICATION
-Judges background or life-experience: race, religion, gender, institutional affiliations are generally not grounds for disqualification.
-Prior knowledge and judicial misconduct
-Adverse comments on rulings: Generally will not justify a disqualification motion.
V. DISQUALIFICATION MOTIONS AND FACTORS MILITATING AGAINST DISQUALIFICATION
-Congress Peremptory Statute, enacted 1911
-California Peremptory Statutes: 170.6 Code of Civil Procedure: Matter of right.
-Duty to Sit Principle of 170.6 (no such duty federally)
-Tactical Nature of the Motion: "Never shoot at an Emperor and Miss!"
-Advising on whether to bring a Motion to Disqualify: Alternatives
-CCP 170-170.9: Rules governing. Reasonable person tests on impartiality.
-Difficulties, caveats, advice and conclusions

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Speakers:

Richard Flamm Richard E. Flamm, a 1981 Rutgers Law School graduate, is a nationally-recognized expert in the field of legal ethics. A litigator for more than 20 years, since 1995 Mr. Flamm has concentrated on his Berkeley California-based law and consulting practice. In his practice, Mr. Flamm provides representation, advice and expert witness testimony with respect to legal and judicial ethics, legal malpractice, and breach of fiduciary duty matters -- with an emphasis on legal, judicial, and quasi-judicial disqualification motions and appeals. In his capacity as an expert witness, Mr. Flamm has testified, either in court or by way of affidavit, in dozens of cases involving matters of legal and/or judicial ethics. Mr. Flamm's extensive client list includes many of the nation's leading corporations and law firms. Mr. Flamm is the author of two highly-acclaimed treatises: Lawyer Disqualification: Conflicts of Interest and Other Bases, and Judicial Disqualification: Recusal and Disqualification of Judges, which has been widely relied on by state and federal courts throughout the country. Both works are published by Banks and Jordan Law Publishing: www.banksandjordan.com. He has also authored numerous scholarly articles on conflicts of interests, disqualification and related subjects for law reviews and other publications.