IN RE: BellSouth Corporation - IN RE: Terry Price, Lehr, Middlebrooks, Price & Proctor, P.C.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-15362 JUNE 17, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-01057 CV-S-S

IN RE:
BELLSOUTH CORPORATION,
Petitioner.

________________________

No. 02-15445
________________________

D. C. Docket No. 02-01057 CV-S-S

IN RE:
TERRY PRICE,
LEHR, MIDDLEBROOKS, PRICE & PROCTOR, P.C.,

Petitioners.
________________________

Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(June 17, 2003)

Before TJOFLAT, ANDERSON and CUDAHY*, Circuit Judges.
______________________
*Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit, sitting by
designation.
ANDERSON, Circuit Judge:

In these consolidated cases, we are called upon to consider the appropriate

course of action where a party is accused of contriving to engineer the recusal of a

district judge by hiring a close relative of the judge as counsel. Petitioners seek a

writ of mandamus compelling the district court to vacate its order disqualifying

attorney Terry Price (“Price”) and his law firm, Lehr Middlebrooks Price & Proctor

(“LMPP”), from representing BellSouth in a putative class-action race

discrimination suit, Jenkins v. BellSouth Corp.

For the reasons that follow, we cannot conclude that Petitioners have met the

heavy burden of showing entitlement to the extraordinary remedy of mandamus.

However, our consideration of this matter reveals that the issues involved are

difficult, sensitive, and important.

I. BACKGROUND

A. The Law Governing Judicial Recusal

A federal judge must disqualify himself from consideration of a case if a

person within the third degree of relationship “[i]s acting as a lawyer in the

proceeding(.)” 28 U.S.C. § 455(b)(5)(ii); McCuin v. Texas Power & Light Co.,

714 F.2d 1255, 1260 (5th Cir. 1983). Further, a judge must recuse if such a family

member “[i]s known by the judge to have an interest that could be substantially

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affected by the outcome of the proceeding.” 28 U.S.C. § 455(b)(5)(iii). That a

relative within the proscribed proximity stands to benefit financially as a partner in

a participating firm – even if the relative is not himself involved – is sufficient to

require recusal. Potashnick v. Port City Const. Co., 609 F.2d 1101, 1113 (5th Cir.

1980).1 In this case, petitioner Price is the nephew of Chief Judge U.W. Clemon

of the Northern District of Alabama, and is a full partner in LMPP. There is thus

no dispute that, under Sections 455(b)(5)(ii) and 455(b)(5)(iii), Judge Clemon may

not hear cases in which Price or LMPP is acting as a lawyer or a firm in which he

is a full partner is a participant.

B. History of Recusal Concerns in the Northern District

It has long been a matter of concern that parties in the Northern District of

Alabama might be taking strategic advantage of the recusal statute to, in effect,

“judge-shop.” See Robinson v. Boeing Co., 79 F.3d 1053, 1055-56 (11th Cir.

1996) (discussing district court's suspicion “that in this district the choice of

lawyers may sometimes be motivated by a desire to disqualify the trial judge to

whom the case has been randomly assigned.”). In particular, it is well-

documented that Judge Clemon has been forced to relinquish numerous cases

1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down as of
the close of business on September 30, 1981.

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because of the participation of Price and/or a firm in which he is a partner.

Such was the case in Robinson. There, the defendant in a putative class-

action employment discrimination case assigned to Judge Clemon sought

permission to add as additional trial counsel the firm of Constangy, Brooks &

Smith (“Constangy”), in which Price was then a partner. The motion for leave to

add counsel was transferred to a different district judge, who denied it. The court

found that, because Judge Clemon had been overseeing the case for fifteen

months, the disruption occasioned by Price's appearance – and the judge's

resulting recusal – could not be tolerated absent any indication of “an overriding

need” for the Constangy firm's services. The court observed that no amount of

scrutiny would ever yield “a confession or