In Re: v. Cargill, Inc.

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-8042

IN RE

CARGILL, INC.,

Petitioner.

ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF MAINE

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Boudin, Circuit Judge.

Bernhardt K. Wruble, with whom William R. Sherman, Verner,

Liipfert, Bernhard, McPherson and Hand, Peter J. DeTroy, III and

Norman, Hanson & DeTroy were on brief, for petitioner.

Joel C. Martin, with whom Michael K. Martin, Daniel W. Bates

and Petruccelli & Martin were on brief, for plaintiffs.

October 10, 1995

SELYA, Circuit Judge. Petitioner, Cargill, Inc.
SELYA, Circuit Judge.

(Cargill), seeks a writ of mandamus directing a judge of the

United States District Court for the District of Maine to

withdraw a decision previously issued and then to recuse himself

from further proceedings in the underlying cause.1 For the

reasons that follow, we decline to issue a prerogative writ.

I. BACKGROUND
I. BACKGROUND

The petition arises out of a civil action brought by

several former Cargill employees, represented by Daniel W. Bates

and Kenneth D. Keating of Petruccelli & Martin (P&M), an eight-

lawyer firm in Portland, Maine. The complaint invokes the

Robinson-Patman Act, 15 U.S.C. 13-13b (1988), and alleges in

substance that Cargill discharged the plaintiffs in retaliation

for their unwillingness to abide certain predatory pricing

practices. Cargill retained a Washington-based firm, Verner,

Liipfert, Bernhard, McPherson, and Hand (Verner, Liipfert), as

lead counsel, and a Portland firm, Pierce, Atwood, Scribner,

Allen, Smith, and Lancaster (Pierce, Atwood), as local counsel.

It then moved to dismiss on the basis that the plaintiffs

experienced no antitrust injury and, therefore, lacked standing

1Petitioner premises his argument on the ground that the
judge's impartiality might reasonably be questioned. The
relevant statute provides:

Any justice, judge, or magistrate of the
United States shall disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned.

28 U.S.C. 455(a) (1988).

2

to maintain the action.

On December 19, 1993, while Cargill's motion was

pending before him, the district judge to whom the case had been

randomly assigned became embroiled in what he subsequently

described as a "minor controversy" relating to his efforts, and

those of his wife, to purchase a new home. The judge telephoned

Gerald Petruccelli, a principal partner in P&M, and sought his

advice anent the real estate dispute. Petruccelli agreed to the

proposed representation, telling the judge that he (Petruccelli)

knew of "no impediment" to the relationship.

On December 21, the two men met for about 50 minutes

and discussed the judge's real estate problem. A series of

telephone conversations followed over the course of the next

eight days. None lasted more than five minutes. Petruccelli

dealt directly with the lawyer who represented the other side in

the real estate matter and, on January 6, 1994, he resolved the

imbroglio to the judge's satisfaction. Petruccelli rendered a

bill, dated January 7, based on his standard hourly rate. The

judge paid the invoice within the week. It is undisputed that

Petruccelli never represented the judge in any other matter and

that the judge dealt only with Petruccelli (not with any other

P&M attorney).

The judge maintains that, at the time he engaged

counsel, he had "no conscious awareness that Mr. Petruccelli or

his firm were involved in this specific litigation then pending"

3

before him.2 Nonetheless, a few days after he had retained

Petruccelli, the judge asked his docket clerk to check his

calendar for pending cases in which P&M might have appeared. The

clerk brought two such cases to the judge's attention at about

the time that the attorney-client relationship ended. One of

these was the case against Cargill. Although Petruccelli himself

had played no role in P&M's representation of the plaintiffs, the

judge decided that he had best disclose his dealings with

Petruccelli.

On January 11, the clerk, acting at the judge's

direction, notified local counsel to attend a conference on the

following day. The disclosure conference (a transcript of which

comprises the appendix) proved to be brief. Attorneys Bates and

Keating appeared for the plaintiffs, and Attorneys O'Leary and

Einsiedler (both of Pierce, Atwood) appeared for Cargill. When

advised of the attorney-client relationship between Petruccelli

and the judge, both Bates and O'Leary quickly volunteered that

their respective clients had no objection to the judge's

continued participation in the case. The judge then advised the

lawyers that he was grappling with Cargill's motion to dismiss

which, in his view, "raise[d] some very interesting and difficult

questions." He forecast that he would hand down a decision

2This declaration, and other declarations reflecting the
judge's state of mind, are extracted from the record of a
conference held in this case (reprinted in the appendix), from
the judge's notice to counsel (described infra), and from the

order denying Cargill's recusal motion. For the most part,
petitioner has not challenged the factual accuracy of the judge's
statements.

4

"within a week or so."

Precisely one week thereafter, the judge issued a 39-

page rescript denying Cargill's motion to dismiss. While the

judge closed his chambers and released his staff on holiday leave

from December 24, 1993 through January 3, 1994, he admittedly

labored over the matter during some portion of the period when

Petruccelli represented him.

The filing of the opinion elicited no immediate

response. Several weeks later, however, Bernhardt Wruble, a

Verner, Liipfert partner, wrote a letter to the court asserting

that, because "a judge's contemporaneous representation by

opposing counsel is uniformly regarded as a basis for obligatory

disqualification," the judge should withdraw his order denying

the motion to dismiss, relieve himself of all responsibility for

the case, and reassign it to another jurist. Anticipating the

predictable reaction to this demand, Wruble suggested that

Pierce, Atwood's acquiescence was of no moment. Since local

counsel lacked prior notice of the purpose of the January 12

conference and, hence, had no opportunity to consult in advance

with either the client or lead counsel, Wruble wrote, the judge

had not afforded petitioner "adequate time for a considered

response" to the disclosure. Thus, there could be no "effective"

waiver.

The judge did no fewer than three things upon receiving

Wruble's communique. First, he postponed a scheduled status

conference in the case. Second, he directed any party who sought

5

his recusal to file a formal motion to that effect. Third, he

composed and served a statement, denominated as a notice to

counsel, in which he denied "that the Court required a decision

on waiver of any objection to the Court's continued participation

to be made at the conference." The judge explained that he meant

the disclosure conference to be informational in nature, that is,

"to advise counsel of the circumstances of Mr. Petruccelli's

representation and afford counsel an opportunity to confer with

clients and other counsel to decide whether they wanted to move

for recusal or request other action by the court." But, wrote

the judge, though he intended to give counsel a full month in

which to advise him of their clients' positions with respect to

the disclosed matter and, with this in mind, thought it

sensible to summon only local counsel to the disclosure

conference he did not do so because, immediately following his

revelation, both counsel, acting for their respective clients,

spontaneously disclaimed any objection to his continued

participation in the case.

On February 25, 1994, Cargill asked the district court

to certify for interlocutory appeal the January 19 order denying

the motion to dismiss. See 28 U.S.C. 1292(b) (1988).3

Roughly two weeks later, Cargill moved for recusal, proffering

several affidavits. Cargill's motion, like Wruble's letter of

February 13, made it clear that Cargill's position rested on a

3The district court eventually denied this motion.
Petitioner does not assign error to the denial, nor could it
rewardingly do so.

6

supposed appearance of impropriety, that is, the existence of

circumstances in which Cargill believed that the judge's

impartiality might reasonably be questioned. See 28 U.S.C.

455(a), quoted supra note 1. Cargill did not advance, then or

now, any claim of actual bias. The plaintiffs opposed the

recusal motion. In their opposition, they made two principal

arguments: (1) Petruccelli's representation did not create an

appearance of impropriety within the meaning of 28 U.S.C.

455(a), and, in any event, (2) Cargill had waived any objection

to the judge's continuing role in the case. The plaintiffs

hinged the latter contention on 28 U.S.C. 455(e), a statute

that specifically permits a judge to accept the parties' waiver

of a section 455(a) appearance-of-impropriety ground for

disqualification as long as the waiver "is preceded by a full

disclosure on the record of the basis for disqualification."

On May 12, 1994, the district court denied the recusal

motion. Cargill subsequently filed its mandamus petition in this

court. We invited the plaintiffs to respond, set a briefing

schedule, and entertained oral argument.

II. THE NATURE OF MANDAMUS
II. THE NATURE OF MANDAMUS

Federal appellate courts are empowered to issue

prerogative writs that are "necessary or appropriate in aid of

their respective jurisdictions" under the All Writs Act, 28

U.S.C. 1651(a) (1988). Because such writs disrupt the

mechanics of the judicial system by accelerating appellate

intervention, prerogative writs foster piecemeal review and

7

disturb the historic relationship between trial and appellate

courts they should "be used stintingly and brought to bear only

in extraordinary situations." Doughty v. Underwriters at

Lloyd's, London, 6 F.3d 856, 865 (1st Cir. 1993). Mandamus is

such a writ. It is strong medicine, and should neither be

prescribed casually nor dispensed freely.

Consistent with these principles, the standards for

issuance of the writ are high. A petitioner seeking mandamus

must show both that there is a clear entitlement to the relief

requested, and that irreparable harm will likely occur if the

writ is withheld. See United States v. Horn, 29 F.3d 754, 769

(1st Cir. 1994); Doughty, 6 F.3d at 866; In re Pearson, 990 F.2d

653, 657 & n.4 (1st Cir. 1993). Sometimes, even these specific

showings are not enough to justify a court's use of its mandamus

power. In the final analysis, a writ of mandamus is an

exceptional remedy and "is to be granted only in the exercise of

sound discretion." Whitehouse v. Illinois Cent. R. Co., 349 U.S.

366, 373 (1955). In this context, equity informs the court's

discretion. See Kerr v. United States Dist. Court, 426 U.S. 394,

403 (1976); United States v. Helvering, 301 U.S. 540, 543 (1937);

United States v. Dern, 289 U.S. 352, 359 (1933); Doughty, 6 F.3d

at 866; United States v. Patterson, 882 F.2d 595, 600 (1st Cir.

1989), cert. denied, 493 U.S. 1027 (1990); In re First Fed. Sav.

& Loan Ass'n, 860 F.2d 135, 139-40 (4th Cir. 1988); Vishnevsky v.

United States, 581 F.2d 1249, 1255 (7th Cir. 1978).

We have held that, in an appropriate case, an issue of

8

judicial disqualification may present a sufficiently

extraordinary situation to justify the unsheathing of our

mandamus power. See In re Allied-Signal, Inc., 891 F.2d 967, 969

(1st Cir. 1989), cert. denied, 495 U.S. 957 (1990); In re Cooper,

821 F.2d 833, 834 (1st Cir. 1987); In re United States, 666 F.2d

690, 694 (1st Cir. 1981); see also In re International Business

Mach. Corp., 618 F.2d 923, 927 (2d Cir. 1980). However, the

usual prerequisites to mandamus relief a showing of both clear

entitlement to the requested relief and irreparable harm without

it, accompanied by a favorable balance of the equities do not

vanish merely because judicial disqualification is the business

of the day. See, e.g., Allied-Signal, 891 F.2d at 969; Cooper,

821 F.2d at 834; In re United States, 666 F.2d at 694. In other

words, the mere fact that a petition for mandamus is directed at

securing the trial judge's removal does not ensure that the

higher court will entertain the petition.

III. DISCUSSION
III. DISCUSSION

After careful perscrutation of the record, we conclude

that petitioner's quest for mandamus should go unrequited.

Cargill has shown neither that it is clearly and indisputably

entitled to the writ nor that it faces an intolerable risk of

irreparable harm should it be forced to await appellate review in

the ordinary course. Moreover, Cargill's failure to take timely

action, after learning of the judge's disclosure and Maine

counsel's ensuing waiver of objection, tips the equitable balance

and argues persuasively against issuance of the writ.

9

A
A

We turn first to the matter of entitlement to the

relief requested. Assuming, arguendo, that the judge's

relationship with Petruccelli created an appearance of

impropriety adequate to animate section 455(a) and we think

that it probably did4 Cargill's entitlement to an order of

disqualification remains questionable. Regardless of whether the

actions of its local counsel effected a fully valid waiver of the

disqualifying circumstance, the silence of Cargill and its lead

counsel after learning what had transpired may very well have

added the missing element, ratified the waiver, and given it

life. We elucidate below.

The relevant statute, 28 U.S.C. 455(e), plainly

contemplates that a party may waive an appearance-of-impropriety

ground for disqualification. The statute itself does not define

4The disqualification requirement of section 455(a) is
triggered, despite the lack of any actual bias on the judge's
part, if a reasonable person, knowing all the circumstances,
would question the judge's impartiality. See Liljeberg v. Health

Servs. Acquisition Corp., 486 U.S. 847, 861-62 (1988). Most

observers would agree that a judge should not hear a case argued
by an attorney who, at the same time, is representing the judge
in a personal matter. See 13A Charles Wright & Arthur Miller,

Federal Practice and Procedure 1349, at 614 (1984) (citing

cases). Although the appearance of partiality is attenuated when
the lawyer appearing before the judge is a member of the same law
firm as the judge's personal counsel, but not the same
individual, many of the same cautionary factors are still in
play. See, e.g., 2 Administrative Office of the U.S. Courts,

Guide to Judiciary Policies and Procedures V-32 (1995)

(expressing the view that "where an attorney-client relationship
exists between the judge and the lawyer whose law firm appears in
the case, the judge should recuse absent remittal"). This
principle would seem to have particular force where, as here, the
law firm is small and the judge's lawyer is a name partner.

10

the form or prerequisites of such a waiver; it only imposes the

condition that the waiver be "preceded by a full disclosure on

the record of the basis for disqualification." 28 U.S.C.

455(e). The transcript of the January 12 conference leaves no

doubt that such a disclosure occurred. The judge laid out the

nature of his relationship with Petruccelli, citing book and

verse. This disclosure was then followed by an unequivocal

statement on the part of Cargill's counsel, unprompted by the

court, to the effect that Cargill did not object to the judge's

continued service in the case. Local counsel reported these

developments to lead counsel immediately after the conference

ended, and Verner, Liipfert in turn promptly informed the client.

Yet, for nearly a month thereafter, Cargill failed to express any

discomfiture with the waiver.

Although we leave the ultimate question open for

resolution on an end-of-case appeal, we think that local

counsel's unqualified assent, combined with Cargill's subsequent

silence for a substantial period of time, creates a sturdy

foundation on which the validity of the waiver might rest, and

that the resultant uncertainty undercuts Cargill's claim that it

is plainly entitled to the requested relief. After all, it is

common ground that civil litigants ordinarily are bound by their

attorneys' tactical judgments, see, e.g., Brody v. President &

Fellows of Harvard Coll., 664 F.2d 10, 12 (1st Cir. 1981)

(holding, on particular facts, that client would not be allowed

"to second guess his attorney's waiver"), cert. denied, 455 U.S.

11

1027 (1982), and waivers based on silence are standard fare, see,

e.g., United States v. Nobel, 696 F.2d 231, 237 (3d Cir. 1982)

(finding waiver under 455(e) based on party's failure to make a

timely objection once the basis for disqualification was fully

disclosed), cert. denied, 462 U.S. 1118 (1983).

However, Cargill asseverates that no valid waiver could

be given by its Maine counsel because the judge failed to follow

exactly the procedures governing waivers of disqualification

dictated by the Code of Conduct for United States Judges (CCUSJ),

adopted by the Judicial Conference of the United States following

promulgation by the American Bar Association. See CCUSJ,

reprinted in 150 F.R.D. 307 (1992). Canon 3D of the CCUSJ allows

a judge to hear a case if the parties and their lawyers agree to

the judge's continued service not only after disclosure of

certain bases for disqualification (including appearance of

impropriety), but also after having been afforded "an opportunity

to confer outside the presence of the judge[.]" Id. at 313.

Here, what transpired at the disclosure conference met the first

requirement of Canon 3D, but not the second.

However, even if we assume arguendo that this

noncompliance rendered the original waiver ineffective,5 counsel

5Although we need not decide the point, we doubt that every
instance of noncompliance with the CCUSJ automatically justifies
post-hoc invalidation of a waiver that otherwise meets the test
of section 455(e). Certainly, the case law on the point is less
than transpicuously clear. See, e.g., Nobel, 696 F.2d at 237

(explaining that "it is sufficient under [section 455(e)] if the
judge provides full disclosure of his or her relationship at a
time early enough to form the basis of a timely motion at or
before trial and under circumstances which avoid any subtle

12

thereafter had ample opportunity for consultation with the

client, outside the presence of the judge, yet Cargill, knowing

of the stated waiver, did not alter its position. When the

judge's departure from the CCUSJ is weighed in the balance along

with his explanation and Cargill's knowing acquiescence in local

counsel's express waiver, the call seems to us to be quite close.

This closeness sets a chain reaction in motion. It leads us

first to conclude that the contested waiver may well be

enforceable, and constitutes, at the least, a potential stumbling

block on the road to recusal. The first conclusion leads

inexorably to a second conclusion: that petitioner has failed in

its endeavor to demonstrate that it is "clearly and indisputably"

entitled to the relief that it seeks.

To be sure, Cargill has attempted to explain away its

apparent ratification of the position taken by its local counsel

both factually (through a series of affidavits) and legally

(through its insistence on literal compliance with Canon 3D).

Its factual explanations and legal theories may or may not hold

water in the long run, but that is scarcely the point. We need

not and do not decide the merits of the waiver question at

this juncture. It suffices for present purposes merely to note

coercion"); Haire v. Cook, 229 S.E.2d 436, 438-39 (Ga. 1976)

(similar; construing Georgia law); Commonwealth v. Cagney, 329

N.E.2d 778, 781 (Mass. 1975) (Goodman, J., concurring) (similar;
construing Massachusetts law). Notwithstanding the importance we
attach to the CCUSJ and the obvious desirability of assuring
judicial compliance with the canons, we think a strong argument
can be made that not all instances of noncompliance with the
CCUSJ are automatic disqualifiers.

13

that the issue is sufficiently clouded that petitioner's eventual

entitlement to the requested redress the district judge's

recusal is problematic.6 See Pearson, 990 F.2d at 656 & n.4;

Cooper, 821 F.2d at 834.

B
B

Petitioner suggests that recusal of a judge presents a

special circumstance which, even in the absence of clear

entitlement to the requested relief, warrants interlocutory

review by way of mandamus. This suggestion is not without

force.7 In cases in which parties have sought recusal based on

assertions of actual bias, we have stated that "the issue of

judicial disqualification presents an extraordinary situation

suitable for the exercise of our mandamus jurisdiction." In re

United States, 666 F.2d at 694.

6Because we find no clear and indisputable entitlement to
the requested relief, we need not consider whether Cargill
satisfied the second prong of the mandamus test by a showing of
irreparable harm. We note, however, that although there is
always some harm in litigating for nought, that harm repeatedly
has been held insufficient, in itself, to justify mandamus
relief. See, e.g., In re Bushkin Assocs., 864 F.2d 241, 243-44

(1st Cir. 1989).

7In the same vein, however, we can envision cases in which,
despite a showing that ordinarily would amount to clear
entitlement, a litigant has acted so deplorably that the
petitioned court might choose to withhold discretionary relief.
See generally Precision Instrument Mfg. Co. v. Automotive

Maintenance Mach. Co., 324 U.S. 806, 814 (1945) (explaining that

the doctrine of unclean hands "closes the doors of a court of
equity to one tainted with inequitableness or bad faith relative
to the matter in which he seeks relief"); Texaco Puerto Rico,

Inc. v. Department of Consumer Affairs, 60 F.3d 867, 880 (1st

Cir. 1995) ("It is old hat that a court called upon to do equity
should always consider whether the petitioning party has acted in
bad faith or with unclean hands.").

14

Our rationale in these cases has been that "[p]ublic

confidence in the courts may require that such a question be

disposed of at the earliest possible opportunity." In re Union

Leader Corp., 292 F.2d 381, 384 (1st Cir.), cert. denied, 368

U.S. 927 (1961). However, we have cautioned that this philosophy

does not "commit us to entertaining every rejected affidavit of

prejudice," and we have made it clear that, even when a mandamus

petition seeks a judge's recusal based on an assertion of actual

bias, mandamus remains "a discretionary writ." Id. Because its

origins are equitable in nature, the writ should issue to remedy

a wrong, not to promote one and it should not "be granted in

aid of those who do not come into court with clean hands."

United States v. Fisher, 222 U.S. 204, 209 (1911).

In this case, principles of equity caution against

exercising discretion to reach out for the disqualification issue

here and now. To explain why, we must remind the reader that

mandamus is a potent weapon. Precisely because the writ packs a

considerable wallop, litigants are sometimes tempted to employ it

for its strategic value, regardless of the merits of their cause.

See Allied-Signal, 891 F.2d at 970; In re Drexel Burnham Lambert

Inc., 861 F.2d 1307, 1312-16 (2d Cir. 1988), cert. denied, 490

U.S. 1102 (1989). Ignoring this possibility when, as now, a

petition for mandamus seeks the disqualification of a judge

shortly after the judge decides a major point against the

petitioner would be to blink reality. In the real world, recusal

motions are sometimes driven more by litigation strategies than

15

by ethical concerns.

In such straitened circumstances, appellate tribunals

must be especially alert to the dangers of manipulation. Courts

can ill afford to permit mandamus to be used as a tactic to

jettison an impartial judge whose slant on a case, as evidenced

by his rulings, jeopardizes a party's chances for ultimate

success. See In re United Shoe Mach. Corp., 276 F.2d 77, 79 (1st

Cir. 1960) ("We cannot permit a litigant to test the mind of the

trial judge like a boy testing the temperature of the water in

the pool with his toe, and if found to his liking, decides to

take a plunge.") (citation and internal quotation marks omitted);

cf. Reilly v. United States, 863 F.2d 149, 160 (1st Cir. 1988)

(explaining that "when a trial judge announces a proposed course

of action which litigants believe to be erroneous, the parties

detrimentally affected must act expeditiously to call the error

to the judge's attention or to cure the defect, not lurk in the

bushes waiting to ask for another trial when their litigatory

milk curdles"). By like token, courts cannot afford to spawn a

public perception that lawyers and litigants will benefit by

undertaking such machinations.

This case runs up just such a red flag. While the

record does not compel a finding that petitioner and its lead

attorneys delayed any attempt to retract Maine counsel's waiver

as part of a plot to await the results of the judge's impending

decision, the chronology is suggestive. The scenario lends

itself to the following description: Cargill, armed with all the

16

relevant facts no later than January 14 and knowing that the

judge planned to decide the key motion in the case during the

following week,8 held its "appearance-of-impropriety" and

"invalid waiver" arguments in reserve, deferred any recusal

initiative, awaited the ruling on the motion to dismiss, found

that ruling to be greatly disappointing, and then pulled the

recusal option off the shelf in hopes of locating a more

sympathetic trier.

Of course, Verner, Liipfert tries strenuously to

explain away this chain of events. The firm's attorneys have

regaled us with descriptions of both their busy travel schedules

and the inclement weather that struck the nation's capitol during

January of 1994. But even if we were to take these excuses at

face value, they are simply not sufficient to justify the firm's

decision to sit silently by until the judge had showed his hand.

We believe it is self-evident that, once Cargill was

aware of the details surrounding Petruccelli's relationship with

the judge, it should at a bare minimum have told the court that

it wanted time to rethink its options and sought a delay in the

issuance of the court's opinion (which it knew to be imminent).

In all probability, it would have taken no more than a telephone

8The various affidavits submitted by the petitioner to the

district court establish that on Wednesday, January 12, the very
day that the disclosure conference was held, Pierce, Atwood
informed Verner, Liipfert of what had transpired, including the
judge's plan to issue his decision in approximately one week. A
corporate official was told of the situation no later than
Friday, January 14.

17

call or a facsimile transmission to place matters on hold.9

Thus, putting the most favorable face on the situation, it is

apparent that Cargill and its lead counsel neglected to act with

the immediacy that the circumstances obviously required.

Our need to exercise discretion also demands that we

take a related point into account. The case at hand is different

than our earlier precedents in several respects. First, it does

not involve a claim of actual bias, and, thus, it lacks one

important ingredient that in the past often prompted us to

undertake review of judicial disqualification orders at the

earliest practicable time. See Union Leader, 292 F.2d at 384.

When issuing the writ is necessary to promote public confidence

in the courts by avoiding the unseemly spectacle of trial before

a biased judge, the need for immediate relief is manifest. See

In re United States, 666 F.2d at 694. These concerns are

lessened where, as here, there is neither a trace nor a

suggestion of actual bias. Second, in this case, the party who

now claims to be aggrieved earlier had made an express waiver of

the stated ground for disqualification. This, too, changes the

calculus of public perception.

Last, but far from least, petitioner's course of

conduct whether conniving or merely slipshod influences our

assessment of the equities. Its handling of the matter places us

9Cargill suggests that it might have offended the judge by
taking such action. We think its concerns are overblown:
lawyers run such a risk every time they seek a judge's recusal.
In any event, trial advocacy is no sport for the timorous.

18

between Scylla and Charybdis: if we do not entertain the

petition, we run a risk of seeming hesitant to inquire too deeply

into a possible abuse of judicial power; yet, if we entertain the

petition despite the appearance of sandbagging that Cargill has

created, we run a risk of eroding public confidence in the courts

by seeming to reward a litigant for its gamesmanship.

Given the fundamental nature of mandamus, declining

jurisdiction in the exercise of our informed discretion seems

preferable. Though it might be mere coincidence that the delay

in seeking to set aside the waiver worked to Cargill's advantage

by allowing it to see which way the wind was blowing before

deciding whether to urge recusal, the appearance of judge-

shopping is sufficiently pronounced that the equities counsel

restraint. See, e.g., Apple v. Jewish Hosp. & Medical Ctr., 829

F.2d 326, 334 (2d Cir. 1987) (noting that a "movant may not hold

back and wait, hedging its bets against the eventual outcome");

Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1986)

("Counsel, knowing the facts claimed to support a 455(a)

recusal for appearance of partiality may not lie in wait, raising

the recusal issue only after learning of the court's ruling on

the merits."), cert. denied, 481 U.S. 1016 (1987). We simply

cannot afford to nourish the impression that the courts, as an

institution, will bend over backward, overlook the obvious, and

countenance sharp tactics merely because they are directed at a

judge.

IV. CONCLUSION
IV. CONCLUSION

19

We need go no further. Petitioner has neither met the

conventional requirements for mandamus relief nor satisfied us

that, in the unique circumstances of this case, the equities

favor an affirmative exercise of our discretion. Consequently,

we deny the petition, without prejudice to Cargill's right to

raise its claim of error, if it so chooses, in an end-of-case

appeal.10

The petition for a writ of mandamus is denied.
The petition for a writ of mandamus is denied.

Appendix follows; dissenting opinion follows appendix

10Just as orders disqualifying or refusing to disqualify
counsel "can be reviewed as effectively on appeal of a final
judgment as on an interlocutory appeal," Richardson-Merrill, Inc.

v. Koller, 472 U.S. 424, 438 (1985), we see no reason why orders

pertaining to judicial disqualification cannot be effectively
reviewed at that time and in that manner. Nor is this scenario
oddly configured. An end-of-case appeal is a matter of right,
while mandamus is a matter of discretion. Courts have frequently
found that difference dispositive in analogous circumstances.
See, e.g., Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34

(1980) (per curiam); In re Bushkin Assocs., 864 F.2d 241, 244

(1st Cir. 1989). And, moreover, the fact that a lengthy trial
has intervened will not rob an appeal of its effectiveness. See,

e.g., Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1992)

(vacating judgment on direct appeal following 35-day trial,
despite the circuit court's earlier denial of mandamus relief on
the same ground).

20

APPENDIX
APPENDIX

CHAMBERS CONFERENCE
CHAMBERS CONFERENCE

January 12, 1994
January 12, 1994

THE COURT: This is a very simple matter, I
THE COURT:

think. At least the reason for the

conference, so you don't have to get all

excited about it, is because Mr. Bates is

counsel in this matter and I have a

disclosure that I must make to counsel.

Approximately on December 19th, 1993, while

Mrs. Carter and I were in the course of

looking for a new house, I got in a

controversy with a party in a contract, a

purchase and sale, a minor controversy.

I, on that date, called Gerald Petruccelli,

Mr. Bates's partner, and I asked him if he

could give me advice and perhaps represent me

if it came to that.

He called me back on December 20th and said

that he had decided there was no impediment

to this representation of me. I met with him

on December 21 for about 45 to 50 minutes, we

21

discussed the matter. I told him that I

wanted a quick resolution - I should practice

what I preach.

I had telephone conferences with him about

the matter on December 22, 23, 28 and 29,

four or five minutes a piece. I understand

from him that he had telephone conferences

during that period of time with another

attorney and on January 6th, 1994, the matter

was resolved to my satisfaction. On the 7th,

Mr. Petruccelli rendered to me his bill and

on the 10th, that bill was paid in full.

The understanding at the conference that I

had with him on the 21st of December was that

I would pay the usual rate, usual fee

computed at the usual hourly rate for the

hours of devotion to the case that he would

charge to any stranger off the street. And I

was very serious about that, and I'm sure

that he was and I think the bill was entirely

satisfactory one to me, and I have no reason

to expect that it is to him. So we have no

kind of debt of any kind to each other out of

this very brief transaction.

22

I will tell you that I am morally certain in

my own mind that this series of events will

not in any way affect my ability in the way

I would find it to be properly decided, even

if the event had not occurred.

However, under the code, the canons of

judicial conduct, I felt arguably perhaps,

but I felt that it was proper, perhaps

required, but at least proper that I disclose

it and see if anyone has any objection in my

continuing to serve as the judge who will

ultimately decide this case.

MR BATES: Speaking for the plaintiff, we
MR BATES:

have absolutely no objection.

THE COURT: The record should also reflect
THE COURT:

that I never had any conversation with Mr.

Bates or anyone else of Mr. Petruccelli's

office.

MR. O'LEARY: Speaking for the defense, there
MR. O'LEARY:

is no objection.

23

THE COURT: I wanted you to know this.
THE COURT:

That's all I have. We have been for some

time - I have been in the course of dealing

with motions which raise some very

interesting and difficult questions and I

expect that within a week or so I will be in

a position to file a decision resolving that,

so the matter can go forward. I apologize

having held the matter up that long but these

are very tough things, not matters of first

impression, and I don't have a lot of

guidance by better judges than I.

MR. O'LEARY: Thank you.
MR. O'LEARY:

MR. BATES: We appreciate it.
MR. BATES:

THE COURT: Thank you very much. Another
THE COURT:

matter, the Graffam, matter, is scheduled for

trial, which is in your office on the other

side, you might just talk with them about it,

Bill Kayatta, apprise him of what has

happened and tell him that matter is also

scheduled for conference for the same purpose

so he can have a chance to reflect on it.

24

MR. BATES: I don't know that this needs to
MR. BATES:

be a part of the record. I know that Gerry

told me that he was going to call Bill

Kayatta, and did so.

THE COURT: Gerry did call and tell me that
THE COURT:

he had called someone to see if that would

create, if his representation would create

any problem and I didn't know what case it

was about or who the lawyer was. Ultimately

he called me back and told me that he had

found no impediment to his representation.

MR. O'LEARY: I appreciate the disclosure.
MR. O'LEARY:

[End of conference]

25

CAMPBELL, Senior Circuit Judge, (dissenting).

While the question is exceedingly close, I regret that I

cannot agree with the court. The court's opinion would be

persuasive if written before the Judicial Conference of the

United States had adopted Canon 3D of the Code of Conduct for

United States Judges. But the court's opinion seems to me to

pay too little attention to the district court's failure to

have observed the Canon. Canon 3D provides,

A judge disqualified by the terms of
Canon 3C(1), except in the circumstances
specifically set out in subsections (a)
through (e) may, instead of withdrawing
from the proceeding, disclose on the
record the basis of disqualification. If

the parties and their lawyers after such

disclosure and an opportunity to confer

outside of the presence of the judge, all

agree in writing or on the record that
the judge should not be disqualified, and
the judge is then willing to participate,
the judge may participate in the
proceeding. The agreement shall be
incorporated in the record of the
proceeding. (emphasis added).

Canon 3D applies squarely to the situation here, in which a

judge has sought the parties' waiver of his mandatory

disqualification under 455(a). Congress expressly allows a

judge to accept a waiver of his disqualification under

455(a) (appearance of lack of impartiality) although not

under 455(b) (bias, personal knowledge of facts, financial

interest, etc.). See 28 U.S.C. 455(e). But while 455(e)

specifies no more than that such waiver be preceded "by a

full disclosure on the record of the basis for

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26

disqualification," the judiciary is also subject to its own

Canon 3D which imposes additional conditions that were not

followed here. For that reason, I disagree that the parties

ever effectively waived the duty imposed by 455(a) that the

judge disqualify himself.

I make two points at the outset. First, as my

colleagues seem to concede, the judge's employment, as his

own lawyer, of the senior partner of the law firm

representing plaintiffs at the time he was considering a

major dispositive motion in plaintiffs' lawsuit, gave rise to

a reasonable question of his impartiality under 455(a).

While this was hardly a major indiscretion as such matters

go, it was the kind of conduct that gives rise to an

appearance of impropriety. Our court is in apparent

agreement as to the applicability of 455(a). However,

because the district court felt otherwise, and because the

issue deserves consideration, I have stated my reasons for

finding that 455(a) applies in an appendix to this dissent.

Section 455(a) required the judge to disqualify himself sua

sponte unless he received and accepted an appropriate waiver

from the parties.

A second point is that the proceedings at the

January 12 conference at which the judge candidly and

commendably disclosed the matter omitted to follow Canon

3D in basic ways. Canon 3D was developed to offset the

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27

criticism that otherwise disqualified judges sometimes

secured the parties' agreement to allow them to continue in

cases by taking advantage of counsel's natural reluctance to

offend a judge before whom they frequently had to appear.

The original language of Canon 3D was drafted by a special

committee of the American Bar Association chaired by the

former chief justice of the Supreme Court of California,

Justice Traynor. Justice Traynor emphasized that, before a

valid waiver could occur, counsel must receive an opportunity

to confer with their clients outside the judge's presence.

The special committee also believed that the client as well

as counsel had to be involved in the waiver decision, as the

"parties are less likely than counsel to feel judicial

pressure [to remain in the case] . . . ." Broadening and

Clarifying the Grounds for Judicial Disqualification:

Hearing on S. 1064 Before the Subcomm. of Courts, Civil

Liberties and the Administrative Justice of the House Comm.

on the Judiciary, 93d Cong., 2d Sess. (1974).

The Canon serves in part to dispel counsel's sense

that by failing immediately to endorse the judge's continued

presence in the case, counsel might annoy the judge and

prejudice their cause. Under the Canon, counsel must be

extended an opportunity to consider the disqualification

issue outside the judge's presence, hence free from the fear

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28

that any hesitancy to endorse the judge's continued presence

may be personally held against him.

In the present case, the judge never stated that

local counsel was free to withdraw and discuss

disqualification with his client and co-counsel. The judge

knew or should have known at this time that counsel had no

prior opportunity to discuss the issue with his client. The

judge had not disclosed the subject of the conference in

advance. Local counsel had made express inquiry the day

previous as to what the January 12 meeting would be about and

could learn nothing. Counsel, therefore, could not have

discussed the issue with his client and lead counsel prior to

the meeting. When he came to the conference, local counsel

had to react on the spur of the moment, without knowing what

rights the judge was prepared to recognize, without knowing

whether the judge would recuse himself if counsel objected,

and without reassurance from the court that, without offense,

local counsel would be given a chance to consider this matter

with his client outside of the court's presence. The express

language of the Canon, conditioning a waiver upon an

opportunity to confer with the parties and counsel outside

the judge's presence, was not, in these circumstances, put

into play.

In hindsight, to be sure, local counsel could have

sought to save the situation by requesting time to talk to

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29

lead counsel and his client a request the judge indicates

he would have granted. However, without the judge's advance

advice, counsel would not necessarily be expected to know of

his rights under Canon 3D, or indeed to know that Canon 3D

existed at all. Moreover, counsel may have felt that, where

the judge stated that the disclosed conduct would not affect

his ability to decide the case, and indicated no clear

willingness to withdraw, any hesitancy would simply be an

irritant. The duty to extend the benefits of this Canon to

the parties rests upon the judge. Here the judge did not

mention the provisions of the Canon nor indicate what rights

he would recognize.

In such circumstances, I think it plain that no

waiver occurred on January 12. In fact, the scenario at the

January 12 conference was exactly the one that Canon 3D was

intended to change. The drafters of Canon 3D thought that a

judge who simply announced disqualifying facts, indicated his

desire to continue to serve, and solicited and accepted oral

waivers from the attorneys present, might be exercising a

"velvet blackjack." Broadening and Clarifying the Grounds

for Judicial Disqualification: Hearing on S. 1064 Before the

Subcomm. of Courts, Civil Liberties and the Administrative

Justice of the House Comm. on the Judiciary, 93d Cong., 2d

Sess. (1974). Canon 3D, by requiring discussion with the

clients outside the judge's presence and, by requiring the

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30

clients' acquiescence as well as that of counsel, sought to

ease the pressures to acquiesce that inhered in the "old"

process.

It is true that the Code of Judicial Conduct is not

statutory, nor does the Judicial Conference of the United

States which adopted the Code hold a specific statutory grant

of authority to enact binding ethical rules. However, the

Conference is itself a creature of statute. See 28 U.S.C.

331. Chaired by the Chief Justice, the Conference is the one

body recognized as speaking administratively for the entire

federal judiciary. Its adoption of Canon 3D, I suggest,

gives the Canon great persuasive weight. Additionally, the

provisions of Canon 3D emanated from a model ethical code

drafted by the American Bar Association and adopted in one or

another version, by many states. It is important, I think,

to our institutional credibility, that the procedures set out

in Canon 3D of the Code of Conduct for United States Judges

be taken seriously.

As, in my view, no waiver occurred by force of

local counsel's acquiescence on January 12, the question

arises whether some kind of de facto waiver or equitable bar

should be implied from Cargill's failure to object promptly

to the judge's continued participation once its local counsel

had told it of the judge's disclosures. Cargill also learned

at the January 12 conference that the judge was about to hand

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31

down his ruling. If Cargill did not want the judge to

participate, my colleagues believe that Cargill was required

to protest then and there, rather than strategically waiting

to see how the wind blew, objecting as it did only

after the judge had ruled against it.

This is a close question. There is certainly

weight to my colleagues' view that Cargill may be misusing

the Canon now for purely strategic purposes. It can be

implied, moreover, that the district court having fully

revealed the conduct in question, sincerely, if incorrectly

under the Canon, relied on local counsel's approval, not

withdrawn, as sanctioning the court's continuance in the

case. But while reasonable minds may differ, I believe that

the court's failure to follow Canon 3D's waiver procedures so

clouded future events as to make it inappropriate to read too

much into Cargill's failure to challenge the judge's

continued participation during the week prior to the court's

ruling on the motion. A primary purpose of the procedure

outlined in the Canon is to remove, or at least to lessen,

the pressure of the judge's feared resentment if a waiver is

not quickly volunteered. This lessening of pressure would

not have happened here. The Canon anticipates that the court

will reassure attorneys in advance of their right to speak to

their clients out of the judge's presence. Also that the

judge will inform counsel that he will withdraw if waiver is

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32

not granted, or, at least, of his intentions in this regard.

In the present case, by the time Cargill learned of the

judge's stated grounds for disqualification, the judge had

already made the decision not to recuse himself. At that

point, Cargill had no assurance that its repudiation of local

counsel's acquiescence would be honored. It had to decide

whether to risk angering the judge futilely at a time when

the matter seemed to have been settled and a decision on its

motion was imminent.

To be sure, Cargill's local counsel could have

acted differently. It is often true and properly so

that a client is bound by positions taken or not taken by his

attorney. Canon 3D makes it clear, however, that attorney

acquiescence, standing alone, is not enough to constitute a

waiver. Local counsel's acquiescence followed by Cargill's

reluctance to object cannot be disassociated from the judge's

initial failure to implement the Canon provision a

provision that the judge himself is responsible for

explaining and implementing in the first instance. Canon 3D,

setting out the requirements for a judge to secure a valid

waiver of his own disqualification, is not mere grist for the

adversarial mill. Rather, it is a rule of conduct the judge

is supposed to know and apply. While Cargill's counsel might

have saved the situation, responsibility for the error should

not too easily be shifted to the shoulders of one of the

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33

parties. Given the altered situation confronting Cargill

once the die had been cast on January 12, I am not disposed

to find that Cargill ratified local counsel's earlier

acquiescence simply by taking no action before the court's

decision.

Cargill, to be sure, had to act diligently if it

wished to challenge the judge. Delay would soon become

unfair to Cargill's opponent, who would continue to invest

money and effort into the lawsuit in reliance upon the

continued service of the judge in question. But Cargill's

raising of an objection within a month after the decision

seems to me to be acceptable given that the initial error was

that of the judge, not Cargill. In so saying, I recognize

the validity of my colleagues' concern that Cargill may well

be acting strategically, and that courts are, and should be,

reluctant to allow two bites at the apple. But against this

must be weighed the nonobservance of Canon 3D.

As 455(a) applied and, in my view, no sufficient

waiver occurred under 455(e), the question of remedy

arises. In Liljeberg v. Health Serv. Acquisition Corp., 486

U.S. 847, 862-64 (1988), the Supreme Court wrote:

A conclusion that a [ 455(a)] violation
occurred does not, however, end our
inquiry. As in other areas of the law,
there is surely room for harmless error
committed by busy judges who
inadvertently overlook a disqualifying
circumstance. There need not be a
draconian remedy for every violation of

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34

455(a) . . . . We conclude that in
determining whether a judgment should be
vacated for a violation of 455(a), it
is appropriate to consider the risk of
injustice to the parties in the
particular case, the risk that the denial
of relief will produce injustice in other
cases, and the risk of undermining the
public's confidence in the judicial
process.

See also In re Allied-Signal, Inc., 891 F.2d 974, 975-76 (1st

Cir. 1989).

For a new judge to be brought in at this juncture

would not, in my view, be a draconian remedy, nor a license

for unwarranted attacks on courts. To be sure, the question

that arose here the judge's brief use of the senior law

partner in the same law firm retained by plaintiffs was

not monumental and quite likely would have been waived by

Cargill in a proper proceeding. Moreover, evidencing his

integrity, the judge quickly called a conference and revealed

all the relevant facts. Nonetheless, the judge's retention

of Mr. Petruccelli at the time of the pending lawsuit did

create the appearance of lack of impartiality; and section

455(a) required the judge to step aside unless he received

proper waivers from the parties. As this did not occur here,

and as the case is still at an early stage, I think it would

be reasonable for another judge to enter the case. While

this imposes some small price on the court and plaintiffs, it

is justified as demonstrating the need to observe the Canon.

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35

I would add that, had mandamus requiring a new

judge been granted, it would have been open to this court to

let stand the former judge's ruling on Cargill's dismissal

motion. Whether to do this would have been a close question,

but, however that issue were resolved, the bringing in of a

new judge would have emphasized that Canon 3D procedures are

not precatory.

I do not take too seriously my colleagues'

suggestion that this issue may be revisited several years

down the road on direct appeal from any final judgment

rendered in plaintiffs' favor. By then there would be

overwhelming equities in plaintiffs' favor not to require

them to undergo the expense and burden of retrying the case

before a different judge. The Supreme Court has stated "that

in determining whether a judgment should be vacated for a

violation of 455(a), it is appropriate to consider the risk

of injustice to the parties." Liljeberg, 486 U.S. at 864.

Mandamus has been properly recognized as the usual and proper

remedy for raising and resolving promptly a question of

judicial disqualification such as this. See, e.g., Alexander

v. Primerica Holdings, Inc., 10 F.3d 155 163 (3d Cir. 1993);

In re United States, 666 F.2d 690, 694 (1st Cir. 1981). I

would expect that the court's decision, which has been

rendered after the most careful consideration by all members

of the panel, will end the matter.

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36

Appendix to Judge Campbell's Dissent
Appendix to Judge Campbell's Dissent

For the following reasons, I conclude that the

judge's relationship with Mr. Petruccelli required him to

recuse himself under 28 U.S.C. 455(a) absent receipt of the

parties' waiver. That statute provides that a judge "shall

disqualify himself in any proceeding in which his

impartiality might reasonably be questioned." (emphasis

supplied). The legislative history indicates that section

455(a) was meant to lessen the traditional "duty to sit,"

and, as the Supreme Court has indicated, to require

avoidance of even the appearance of partiality. Liljeberg v.

Health Serv. Acquisition Corp., 486 U.S. 847, 860-61 (1988).

Recusal may be required even in the absence of actual

partiality if there is an objectively reasonable basis for

doubting the judge's impartiality. Id.; see Code of Judicial

Conduct Canon 2 (1973) ("[A] judge should avoid impropriety

and the appearance of impropriety in all his activities.")

(emphasis supplied). The Committee on the Codes and Conduct

of the Judicial Conference of the United States stated that

where an attorney-client relationship
exists between the judge and the lawyer
whose law firm appears in the case, the
judge should recuse absent remittal.

2 Administrative Office of the U.S. Courts, Guide to

Judiciary Policies and Procedures V-25 (1993).

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37

The proper standard for ascertaining whether a

judge's impartiality might reasonably be questioned under

455(a) is whether the charge of lack of impartiality is

grounded on facts that would create a reasonable doubt, not

in the mind of the judge, or even necessarily that of the

litigant, but rather in the mind of the reasonable person.

See United States v. Cowden, 545 F.2d 257, 265 (1st Cir.

1976), cert. denied, 430 U.S. 909 (1977). Section 455(a)

requires a contextual, case-by-case analysis. It does not

imply a bright-line rule disqualifying any judge who ever has

personal dealings with an attorney whose firm represents

litigants before the same judge. The existing case law on

the subject of judge-attorney dealings rests on exceedingly

fact-specific judgments, with different outcomes in different

situations.11

11. See In re Placid Oil Co., 802 F.2d 783 (5th Cir. 1986);

Potashnick v. Port City Constr. Co., 609 F.2d 1101 (5th

Cir.), cert. denied, 449 U.S. 820 (1980); Texaco v. Chandler,

354 F.2d 655 (10th Cir. 1965), cert. denied, 383 U.S. 936

(1966); Rapp v. Van Dusen, 350 F.2d 806 (3d Cir. 1965); In re

Snowshoe Co., 137 B.R. 619 (D. W. Va. 1991), aff'd mem., 953

F.2d 639 (4th Cir. 1992); Carbana v. Cruz, 595 F. Supp. 585

(D.P.R. 1984), aff'd mem., 767 F.2d 905 (1st Cir. 1985);

Miller Indus., Inc. v. Caterpillar Tractor Co., 516 F. Supp.

84 (D. Ala. 1980); Smith v. Sikorsky Aircraft, 420 F. Supp.

661 (C.D. Cal. 1976). See also Varela v. Jones, 746 F.2d

1413 (10th Cir. 1984); S.J. Grove & Sons Co. v. I.B.T., 581

F.2d 1241 (7th Cir. 1978); United States v. Equifax, Inc.,

557 F.2d 456 (5th Cir. 1977), cert. denied, 434 U.S. 1035

(1978); In re Georgetown Park Apt., 143 B.R. 557 (Bankr. 9th

Cir. 1992). Cf. In re Allied-Signal, Inc., 891 F.2d 974 (1st

Cir. 1989).

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38

Having said this, certain principles seem clear. A

judge would ordinarily be disqualified to sit by 455(a) if

an attorney in the case before him or her were, at the same

time, actively representing the judge in a personal matter.

See 13A Charles Wright, Arthur Miller & Edward Cooper,

Federal Practice and Procedure 3549 at 614 (1984); cf.

Potashnick, 609 F.2d at 1110-12; Texaco, 354 F.2d at 657.

And while the situation is more attenuated where the judge is

being personally represented not by the same attorney but by

someone else in the attorney's firm, the latter situation is

at least cause for concern, as there can be no doubt that, in

many factual situations, such overlap can create the

appearance of partiality calling for withdrawal under

455(a). The members of the Judicial Conference Committee

advising judges as to the proper interpretation of the Code

of Conduct have said as much. See 2 Guide to Judiciary

Policies and Procedures, supra, at V-25.

Weighing all the factors in the present case in

which I entertain no doubt whatsoever as to the judge's

personal integrity I nonetheless believe that a

reasonable person viewing all the circumstances might have

questioned the impartiality of the judge. The judge's ruling

to the contrary was, I believe, an abuse of discretion. See

In re United States, 666 F.2d 690, 697 (1st Cir. 1981) (a

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39

federal judge's decision on whether to recuse himself or

herself is committed to that judge's sound discretion).

The judge received personal legal services from the

senior partner of Petruccelli & Martin, a small eight-member

firm, close to the time the court ruled upon a dismissal

motion that, had it been resolved for Cargill, would have put

Petruccelli & Martin's client out of court. The problem is

not simply that by personally retaining Mr. Petruccelli, the

judge indicated he had high regard for the latter's

professional abilities. Judges may and often do, with

propriety, indicate respect for an attorney's competence.

Here, however, by retaining the senior partner of this small

firm for personal legal advice while having under advisement

a dispositive motion in a case being handled by other members

of the firm, the court gave the appearance that he may have

had a particular affinity for that firm and perhaps some

close and special relationship. Other attorneys in the same

case could reasonably have been offended by what might have

appeared, from the outside, to have been a confidential

relationship between the judge and Mr. Petruccelli at that

particular time. Also, even after the ending of the judge's

own attorney-client relationship, an outside observer might

wonder if, in some manner, consciously or unconsciously, the

judge's appreciation for a job well done by plaintiff's law

firm might possibly affect his handling of the pending case.

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40

The judge's brief attorney-client relationship with

Mr. Petruccelli ended, it is true, before the judge's

decision in the case against Cargill. The judge, however,

had worked on Cargill's motion during the period of that

relationship. Moreover, the relationship ended only ten days

before the decision a period too short to insulate the

two events from one another. Any appearance of partiality

that existed prior to the time the representation ceased

cannot be meaningfully separated from the court's decision of

January 19.

It is important to emphasize that 28 U.S.C.

455(a) is concerned with the appearance of impartiality.

Liljeberg, 486 U.S. at 860-61. Disqualification for actual

personal bias or prejudice is separately covered by

455(b)(1). The judge seems to have overlooked the appearance

aspect of the statute when he emphasized at the January 12

conference his moral certainty that his handling of the case

would not be affected by the relationship with Mr.

Petruccelli. The question was not just whether he was biased

or prejudiced, but whether his impartiality might reasonably

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41

be questioned, a related but different matter.12 According

to the House Report accompanying amendments to 455,

Subsection (a) of the amended section 455
contains the general, or catch-all, [of
Canon 3C] that a judge shall disqualify
himself in any proceeding in which 'his
impartiality' might reasonably be
questioned. This sets up an objective
standard, rather than the subjective
standard set forth in the existing
statute . . . . This general standard is
designed to promote public confidence in
the impartiality of the judicial process
by saying, in effect, if there is a
reasonable factual basis for doubting the
judge's impartiality, he should
disqualify himself and let another judge
preside over the case. The language also
has the effect of removing the so-called
'duty to sit' which has become a gloss on
the existing statute . . . .

H. Rep. No. 93-1453, 93d Cong., 2d Sess. (1974), reprinted in

1974 U.S.C.C.A.N. 6351.

To be sure, the drafters of the statute were also

concerned, as are my colleagues here, that the statute not be

12. Section 455 was completely rewritten by Congress in 1974
so as to conform with the then-new Code of Judicial Conduct

which the Judicial Conference of the United States had
adopted in 1973 as being applicable to all federal judges.
Section 455 was amended so as nearly to duplicate the Code's
Canon 3C, with the intention that federal judges "would no
longer be subject to dual [i.e.] Code and statutory standards
governing their qualification to sit in a particular
proceeding." H. Rep. No. 93-1453, 93d Cong., 2d Sess.
(1974), reprinted in 1974 U.S.C.C.A.N. 6351. The Code of

Judicial Conduct was drafted under sponsorship of the

American Bar Association by a committee chaired by former
California Chief Justice Roger J. Traynor. The other
committee members included Justice Potter Stewart of the U.S.
Supreme Court, Judge Irving R. Kaufman of the U.S. Court of
Appeals for the Second Circuit, and Judge Edward T. Gignoux
of the U.S. District Court for the District of Maine.

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42

used by litigants for purely strategic purposes. The House

Report cautions that the new test should not be used by

judges to avoid sitting in difficult or controversial cases.

Disqualification for lack of impartiality must always have "a

reasonable basis." Id. (emphasis in original).

Yet the question at issue is, objectively, whether

the circumstances reasonably gave rise to a question of the

judge's impartiality. If so, the judge shall disqualify

himself. An express purpose of the 1974 rewrite of 455 was

to abandon the subjective standard of the older statute,

which had depended largely on the judge's personal view of

whether he or she could behave impartially. Unfortunately,

the circumstances here created a situation where a reasonable

observer could entertain doubts as to the judge's

impartiality. The judge himself obviously had concerns about

the appearance of what had happened, leading him to call the

conference of January 12 for the purpose of disclosing what

had transpired. That a question of the judge's

impartiality under 455(a) existed does not mean that the

judge committed a serious impropriety. The judge explained

that he did not immediately focus on the fact that Mr.

Petruccelli's firm, partners and associates were involved in

the case pending before him. Once aware, the judge

commendably disclosed the relationship. This action speaks

loudly as to the judge's personal integrity. The fact

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remains, however, that a reasonable observer could

objectively question the judge's impartiality in the

particular circumstances. The judge was, therefore, required

to remove himself unless he had received the parties' waiver.

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