Maine Issues Significant Judicial Recusal Opinion

The Maine Supreme Judicial Court has issued an important opinion on the subject of judicial recusal and disqualification.

The case is somewhat complex.

A Portland Maine law firm was retained by a charitable trust to foreclose on property that the trust owned.

The client (somewhat uncharitably) fell behind in its fee payments to the firm. The firm withdrew  and sued the trust for breach of contract.

Unknown to the firm, the subject property was transferred to a second charitable trust controlled by the same trustee for no consideration.

When the law firm learned of the transfer, it amended its complaint to add the second trust as a defendant and alleged that the transfer was fraudulent. The firm also filed a notice of lis pendens and attachment on the property. The court granted the relief.

The defendants sued the law firm in another county, alleging that the recording of the lis pendens constituted slander of title and tortious interference with its prospective economic advantage in reselling the property. That complaint was later dismissed on motion.

The breach of contract action was stayed in light of a fee arbitration panel proceeding. The law firm prevailed and the order was affirmed by a district court.

Proceedings in the district court were before Judge Cole. These proceedings involved discovery disputes and sanctions against the former client. Defaults against the trusts were ordered as well as a judgment for double the value of the property — $340,000.

On appeal (and for the first time), the charitable trusts claimed that Judge Cole was required to recuse himself sua sponte because of a longstanding social relationship with a former judicial colleague (Judge Crowley) who was now at the law firm.

The court “reemphasize[d] that a party who is concerned about a judge’s impartiality should tender its concerns to the court at the earliest possible moment.”

Here, the charitable trusts had no done so.

Further, the court noted, there are only sixty active judges in Maine and only 3800 lawyers.

Collegiality between judges among themselves and with bar is not only permitted; it is encouraged:

At oral argument, counsel expressed surprise that judges will often have lunch together…

It is unavoidable, and indeed desirable, that judges who serve on the bench together will necessarily develop close professional relationships. We do not expect that such cordial relationships will end if a judge leaves the bench and returns to the practice of law. We are cognizant that the party status of the law firm in this instance makes this case  somewhat different from those where a former colleague is simply an advocate for a party before the court.

Judge Cole and Judge Crowley were not alleged to be related or to have financial entanglements.

Thus

 a friendship between colleagues or former colleagues that include such interactions [as lunch, golfing, hockey games or socializing at bar events] does not provide a basis for requiring recusal.

Nor do such contacts require disclosure.

The court also criticized counsel for injecting facts outside the record on appeal of the disqualification issue.

The court remanded for revised damages findings but rejected all other legal arguments raised by the charitable trusts. (Mike Frisch)