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Sunday, June 05, 2016

The Appearance of Impropriety—or Impartiality, for That Matter

Thanks to Howard and the Prawfs crew for inviting me back to be a guest blogger this month! I’ve been at Case Western for nine years now, teaching a variety of subjects (including Civil Procedure, Remedies, Transnational Litigation, Secured Transactions, and now Law, Legislation, and Regulation)—but my favorite class to teach, and the only one I’ve taught every single year, is Professional Responsibility. And within the PR curriculum, my favorite topic to cover is conflicts of interest. There’s a lot of depth there: the difficulty of spotting the potential conflicts (and the cognitive biases that sometimes make them hard to see); handling conflicts that can’t be avoided (when is disqualification warranted? When and how may clients consent to conflicted representation?); and the problems of judicial conflicts (including most recently the Supreme Court case of Williams v. Pennsylvania, which should be decided this month).

Ordinarily I love to talk about legal ethics issues in the news. But Donald Trump’s attempts to suggest that Judge Curiel has an “inherent conflict of interest” due to his ethnic heritage seemed so obviously wrong that there wasn’t much to say about it, especially given the immediate, and thorough, rebuttal from legal scholars in the blogosphere. Eugene Volokh and David Post explained why Trump’s allegations are both legally wrong and threatening to the rule of law, and Howard pointed out that procedural tools can be deployed to protect the integrity of judicial proceedings.

But then I read Alberto Gonzales’ op-ed on the matter, which I think deserves a rebuttal...

His editorial doesn’t fully defend Trump’s position; indeed, it states affirmatively that “Curiel’s Mexican heritage alone would not be enough to raise a question of bias.” The editorial doesn’t stop there, unfortunately.

Gonzales cites the prohibition on an “appearance of impropriety” in Canon 2 of the Code of Conduct for U.S. Judges, which provides that “[a]n appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.” I suspect that he really meant to cite to Canon 3, which focuses on judicial disqualification as opposed to ground for judicial discipline; it  states that the “judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” But this is the least of the problems with the editorial.

Gonzales goes on to suggest that two “other factors” may make “Trump’s concerns about getting an impartial trial” in Curiel’s court “reasonable.” While I don’t expect Donald Trump to be a legal scholar, I do expect Alberto Gonzales—a former Texas Supreme Court justice, former U.S. Attorney General, and now Dean at Belmont Law School—to know better. His two “other factors” are no more reasonable than Trump’s; his argument fails both on law and logic.

First, Gonzales points to Judge Curiel’s membership in La Raza Lawyers of San Diego. He concedes that the group is “unaffiliated” with the National Council of La Raza, which has “vigorously condemned Trump and his views on immigration.” But nonetheless, Gonzales suggests that “Trump may be concerned that the lawyers’ association or its members represent or support the other advocacy organization.” If Judge Curiel were a member of the National Council of La Raza, there might be an interesting question about perceived bias. But being a member of an unaffiliated group, albeit one with a common word in the title? That’s roughly equivalent to confusing Rick Perry with a bottle of Perrier.  They can both be a little bubbly (especially with added syrup), but the positions of one are in no way attributable to the other.

His second argument gets even more convoluted. He points out that Judge Curiel appointed the law firm of Robbins Gellar to be lead counsel in the Trump University class action, and Robbins Gellar “has paid $675,000 in speaking fees” to Hillary Clinton since 2009. Robbins Gellar’s appointment, he notes, came “before Trump entered the presidential race.” But he nonetheless suggests that “it might not be unreasonable for a defendant in Trump’s position to wonder who Curiel favors in the presidential election.” Therefore, Gonzales suggests that these circumstances “while not necessarily conclusive, at least raise a legitimate question” about Judge Curiel’s impartiality.

But the logic—or lack thereof—of this argument is stunning. One would have to believe (1) that Robbins Gellar supports Hillary Clinton for president (the firm may well hire speakers across the political spectrum) and (2) that Judge Curiel chose Robbins Gellar as lead counsel because he shared those political sympathies (unlikely; the process is normally worked out informally by plaintiffs’ counsel, and “the firm or firms that emerge as the de facto leaders only do so because of their experience and past success in prosecuting the types of claims at issue”). This is a ridiculous and unreasonable stretch of the imagination, and in no way raises a legitimate question about Judge Curiel’s impartiality.

But the final logical leap is the most pernicious one: suggesting that the question of “who Curiel favors in the presidential election” could raise a legitimate question about his impartiality. Again, the facts at hand provide no evidence as to Judge Curiel’s political leanings. Of course a politician appearing before a judge will “wonder” about whether the judge supports his or her campaign. But there is no right to appear only in front of judges who would vote for you. Taken to its logical conclusion, Gonzales’ position would allow unfounded speculation about a judge’s political leanings to give rise to a “legitimate question” about his or her “honesty, integrity, impartiality, temperament, or fitness to serve as a judge.” This is not only wrong as a matter of judicial ethics, but it undermines the very legal system Gonzales has spent his entire career serving.

Posted by Cassandra Burke Robertson on June 5, 2016 at 12:46 AM | Permalink


Correction on the link http://larazalawyers.net/id3.html

Posted by: Sara | Jun 7, 2016 7:27:50 PM

At this point, Judge Curiel unquestionably has a duty to sua sponte recuse. If he fails to, he should be impeached.

The La Raza affiliation was bad but the NHBA is so much worse.

Posted by: Sara | Jun 7, 2016 7:01:54 PM

Any United States organization that has LA RAZA in its name is an anti-Anglo-Saxon group intent on recovering American territory for a Latin-American country (preferably Mexico) and is bent towards favoring Latino persons and causes, even if illegal. LA RAZA means 'THE RACE,' so it really doesn't matter which group he belongs. Just so I'm clear, both the HNBA and the La Raza Lawyers Assoc. have the Nat'l Council of La Raza listed as an affiliate on their website. http://larazalawyers.net/id3.htm. Scroll to the very bottom. The judge is also a member of HNBA, HNBA called for a complete boycott of all Trump businesses exactly one year ago this month. So, he's a member of La Raza (not to be confused with the "other" La Raza,) a member of HNBA and a member LJA. Judge Curiel specifically belongs to a legal enterprise of affiliates who have clearly stated their intent to target Trump’s business interests. By all means though, let's ignore the radical nature of these groups and pretend Curiel can be impartial because he's actually braved the journey of sending some illegals to prison.

Posted by: Sara | Jun 7, 2016 6:55:55 PM

One thing I haven't seen mentioned, but bears emphasis: Judge Curiel regularly -- regularly -- sentences undocumented Mexicans to prison for many, many years. In this respect, he's no different than any of his colleagues in the Southern District. It's laughable that any Southern District judge (or southern district prosecutor) has any affection for Mexicans, let alone undocumented ones.

Posted by: Anon1 | Jun 7, 2016 5:58:37 PM

Dean Alberto Gonzalez has reaffirmed the nickname earned as Bush 43's AG: "Speedy."

Posted by: Tony Chiu | Jun 7, 2016 1:48:04 PM

Steve Lubet, who is an expert on judicial ethics and the co-author of a leading judicial ethics treatise, has a couple of posts on this issue at the Faculty Lounge.

Posted by: Doug Richmond | Jun 6, 2016 7:25:57 AM

Sara asks if there are dissenting viewpoints about "this controversial issue?" No, Sara, not so much. It is well-settled that the grounds raised by Gonzales are not only uncontroversial as non-grounds for recusal, but indeed, are sanctionable when raised by an attorney before a Court.

MacDraw, Inc. v. CIT Group Equip. Fin., Inc. 138 F.3d 33 (2d Cir. 1998) (affirming sanctions against lawyers Larry Klayman & Paul Offanedes for writing letters to District Court suggesting inherent conflict on grounds of race, relationships and political leanings).

- Read more at http://legaliq.com/Case/Macdraw_Inc_V_Cit_Group_Equipment_Financing#@d3-de:c5w

Are you seriously wondering why Trump's lawyers at O'Melveny have not filed a motion after two years of their client's whining? I suspect it may be that they, and their reviewing Executive Committee want to continue the practice of law. Perhaps Dean Gonzales will write that motion for him. It might also be that it cannot be favorable to permit the judiciary to adjudicate this question, or that they are holding off until near-November to file. Remember that Judge Curiel will not likely defend himself on this issue, but our friends at the bar should consider blawging on the merits -- an independent judiciary is at risk.

Posted by: Andrew | Jun 6, 2016 2:37:41 AM

Are there no dissenting viewpoints among the legal scholars posting here, or is everyone in agreement on this controversial issue? I remember a time not too long ago when healthy debate was not only pervasive but actually encouraged.

Posted by: Sara | Jun 5, 2016 4:53:54 PM

Reports note Judge Curiel was a prosecutor and actually had to go into hiding while going after a Mexican Cartel. Does AG believe drug defendants have a credible claim to fear impartiality?

Posted by: Joe | Jun 5, 2016 2:20:29 PM

Great post, just wanted to add a few thoughts: Although he's only been a federal judge for a few years, Judge Curiel has presumably presided over the trials of murderers, rapists, pedophiles, etc. I sincerely doubt he is more sympathetic to those defendants than he is to Trump. But if Trump believes he's more odious than a violent criminal, he's certainly entitled to his opinion.

The best part is, the logic of Trump's objection boils down to,"I'm such a bigot that no person of Mexican heritage could possibly treat me fairly."

Posted by: Doug | Jun 5, 2016 2:06:38 PM

Jake Breeden: yes, thanks for catching that! I have corrected it in the post.

Posted by: CBR | Jun 5, 2016 1:46:38 PM

Is this a typo?

"First, Gonzales points to Trump’s membership in La Raza Lawyers of San Diego."

Posted by: Jake Breeden | Jun 5, 2016 1:39:13 PM

Trump's reference to the judge being "Mexican" was despicable. I hope his comments continue to backfire.

Just as a thought experiment, suppose you were a lawyer who believed in legal realism and the attitudinal model. What would you be saying to your client in a privileged conversation after learning you drew judge Curiel?

Posted by: anon | Jun 5, 2016 1:03:54 PM

I actually doubt whether Trump cares about Curiel's biases. He is a player on a political stage not a judicial one. If the ultimate decision is for Trump, it will be hailed as proof of Trump's righteousness despite a biased judge. If it goes against him, he has a;ready politically vaccinated himself because the smoke around Curiel (created by Trump himself) will be enough to undercut the legitimacy of the verdict. This will render null the political effect of the decision and leave only the economic cost which, for Trump is an entirely different issue -just a cost of doing business.

Posted by: Bill Clark | Jun 5, 2016 12:21:02 PM

I think we can go beyond Andra's point: Since a majority of Obama and Bill Clinton appointees likely support Clinton, the logic of Gonzales' position is that any Obama/Bill Clinton appointee has an inherent conflict. And that logic cannot be limited only to the year leading to the election, since those same judges presumptively will support the unknown 2020 Democratic challenger to President Trump.

Posted by: Howard Wasserman | Jun 5, 2016 11:21:47 AM

And let's not forget that despite all of Trump's complaints about Curiel, his lawyers haven't asked Curiel to recuse himself.

Posted by: Neal Goldfarb | Jun 5, 2016 9:37:04 AM

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