dissenting:
We respectfully dissent from the denial of rehearing in banc. Though a statement of reasons for such a dissent is often neither needed nor useful, we believe an expression of views is appropriate in this instance.
The Court has been asked to rehear the panel decision denying a petition for mandamus seeking recusal of the District Judge in this case. See In re Drexel Burnham Lambert Inc., 861 F.2d 1307 (2d Cir.1988). Two circumstances bear upon the question of recusal:
1. The Judge’s wife is to receive approximately $30 million in connection with her sale of stock in a family business, and the financing of the stock purchase is being arranged by Drexel Burnham Lambert Inc., one of the parties in litigation now pending before the Judge.
2. The Judge has referred to a grievance committee charges of professional misconduct by some of the lawyers in the pending litigation based on allegations that they have breached the confidence of the selling shareholders, including the Judge’s wife.
The reasons why the first circumstance requires recusal have been forcefully set forth in the panel dissenting opinion of Judge Lumbard. At the time of the panel opinion, Drexel’s role was solely that of financier for the purchaser. It is now alleged by counsel for two of the petitioners that Drexel’s role in the now completed transaction has increased since the Judge’s ruling: Drexel put up nearly $200 million of its own money as a bridge loan and *120directly and indirectly acquired 8.5% of the equity in the purchaser. The flow of substantial sums of money from Drexel, the litigant before the District Judge, to the Judge’s wife, is now more direct than before.
The second circumstance places the Judge in the role of adversary, on behalf of his wife, to counsel now appearing in the litigation before the Judge. Though a judge need not and should not recuse when, solely in his capacity as a judicial officer, he observes attorney conduct that warrants inquiry by an appropriate disciplinary body and calls such conduct to the body’s attention, see In re Cooper, 821 F.2d 833, 842-44 (1st Cir.1987) (recusal not warranted where trial judge condemns attorney’s conduct as violation of Code of Professional Responsibility); cf. Rosen v. Sugarman, 357 F.2d 794, 799-800 (2d Cir.1966) (recusal not warranted where trial judge held attorney in criminal contempt for courtroom conduct), the present situation involves the District Judge, not solely as a presiding judicial officer, but as the husband of a principal victim of the attorneys’ alleged ethical violation.
These are extraordinary circumstances, raising profound questions as to the standards for recusal and the role of this Court in maintaining the highest standards of judicial propriety in this Circuit. Some of us believe that rehearing in banc is warranted by at least one of these circumstances and some believe it is warranted by both circumstances. All of us believe that rehearing in banc should be ordered.
The panel that denied the mandamus petition applied the strict standards for mandamus and concluded that circumstances known to the panel at the time of its decision did not demonstrate that “clear” and “indisputable ” right to mandamus that is required for issuance of the writ. See In re Drexel Burnham Lambert Inc., supra, 861 F.2d at 1312 (emphasis in original). Even though that decision will not be reconsidered in banc, serious questions concerning recusal remain in the case and will be available for plenary review by the panel that will consider any appeal that may be taken from the final judgment. It would be unfortunate if this important litigation were to continue under such a cloud. As with any in banc vote, the denial of rehearing does not necessarily signify agreement with the panel opinion. See Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 280 F.2d 800, 805 (2d Cir.1960) (Waterman, J., concurring in denial of rehearing in banc). Thus, the fact that a majority of the active judges of this Court has voted not to rehear the mandamus ruling in banc is not necessarily an indication that a majority of this Court believes that the District Judge’s continued participation is proper.
We urge the District Judge, now that his recusal ruling has been upheld upon the narrow review appropriate to a mandamus petition, not to jeopardize the outcome of this litigation by continuing a role that poses substantial risks of ultimate reversal. Several factors warrant his reconsideration. First, there have been developments since his ruling that strengthen the case for recusal. Second, there is an impending settlement of a portion of the litigation. Third, the Judge’s ruling reveals that in one important respect he misconceived the reasons for recusal. He stated the reasons to be that Drexel would not want “to bear the burden” of a favorable, though deserved, ruling on the merits of the case and that an unfavorable ruling might be perceived as attributable to a failure of the stock sale to happen. SEC v. Drexel Burnham Lambert Inc., No. 88 Civ. 6209 at 6 (S.D.N.Y. Oct. 17, 1988) [1988 WL 112880]. Though rejecting these concerns as “far-fetched,” id., he failed to consider the entirely valid concern that no litigant should have to endure the risk that a judge, encountering circumstances that show a basis for partiality, might bend over backward to rule against the litigant on close questions in order to demonstrate impartiality. Cf. Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 396, 69 L.Ed. 767 (1925) (substitution of trial judge sometimes warranted in criminal contempt matters to avoid risk that judge might “bend backward” in making ruling).
An alternative to reconsideration would be for the Judge to seek the advice of the *121Advisory Committee on Codes of Conduct, the committee of the United States Judicial Conference authorized to provide advice concerning the Code of Judicial Conduct for United States Judges.
Under all the circumstances, it would be an act of judicial statesmanship for the District Judge to request that the litigation now be reassigned.