Motions for Recusal: Don’t Poke the Bear Unless You Know You Can Kill It

It simply isn’t enough to say that there might be a conflict or bias. You need hard evidence that the bias or conflict exists. In this case if persuasion is involved you probably have insufficient grounds for asking for recusal and you will probably end up with a judge who sees your efforts as desperate, lacking in substance.

 

I worked on Wall Street. I was an investment banker. I did the writing of prospectuses for multi tiered private and public offerings — the predecessor to the current system of securitization. I was a trader on the floor of the New York Stock Exchange and the American Stock Exchange. My family owned a brokerage firm for whom I worked and established an investment banking division.

From all of that you could argue that I should not be trusted — that I was a creature of Wall Street and that my advice as a lawyer or my rulings as an occasionally appointed general magistrate should disqualify me from making any decisions or rendering any advice concerning the result of a foreclosure.

You might also point to some of my articles that reject the notions that all banks are bad and that securities brokerage firms (investment banks) are not the scourge of the Earth but rather necessary players in a capitalist economy.

Your accusation would be rejected by the Florida Bar at which I am a member in good standing and would be rejected by me in a ruling as a magistrate. And the reason is that you are only pointing out a theoretical conflict or bias, rather than an actual conflict or bias.

As it turns out I have for most of my life been the thorn in the side of big banks, having defeated them in some seminal cases in which banking practices were changed throughout the country. And now I’m a thorn in the side of investment banks who I believe are simply abusing a system without regard to the consequences and in willful disregard of law, custom, practice, morals and ethics. And I have soundly beaten them in court, again forcing them to change the way they do business.

So getting rid of me would be a bad thing for a borrower even though on paper you might think I would rubber stamp anything that a bank or securities brokerage firm would say directly or through intermediaries.

A motion for recusal only has a solid foundation if you can point to a specific thing that is causing unfair decision-making — not that might cause it.

Asking a judge to recuse himself or herself is like poking a bear with a sharp stick. The stick needs to be very sharp and very strong. Nearly all motions for a judge to recuse themselves are denied by the same judge and if appealed, are affirmed by appellate courts. The only motion that gets traction is the one that cites to a specific conflict of interest or demonstrable bias that completely prevents the judge from rendering a fair decision.

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It’s not enough that the judge was previously employed by a bank. it might not even be enough if the judge was previously employed by the bank that is in foreclosure — but in order to avoid the appearance of impropriety most people would say that the judge should recuse under such circumstances not because there is an actual conflict of interest but because there is an appearance of a conflict, which reduces public confidence in the courts.
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So don’t do it unless you have clear convincing evidence good demonstrates bias or conflict. What you are usually suggesting is merely a theory of conflict. The fact that a judge has been previously employed by a bank does not mean, ipso facto, that they will not render fair decisions. (They might have left banking because they hated it). If it makes you feel any better you do have the right to ask the judge directly whether this prior association will affect their ability to render a fair decision.

2 Responses

  1. I actually got a judge recused in my case. I had no choice….laws were flagrantly broken.

    I had filed a motion to dismiss. According to my RCP, that motion should have been set for hearing and a ruling made from that hearing. Instead, the judge had their staff call the plaintiff’s attorney and they discussed it privately over the phone. The attorney also sent a letter to the judge’s office. Essentially, the judge held private court in this manner, and the contents of those discussions have never been made known to me. Also, our code of conduct here requires that any written notice received by the judge from one party must be disclosed fully to the other parties. This never happened either.

    So I moved for recusal. Private court? That’s too much to ignore, and if it could be done on a motion to dismiss, what else could be happening that I was not being told about? The judge wrote a flowery response about how no wrongdoing had occurred, even though there was no attempt to deny that the private conversations had occurred. The judge then recused themselves despite claiming that they did nothing wrong.

    Consequences? Yep, I believe so. But had to be done. Since then, the replacement judge was harsh in her rulings and went as far as to ignore my objections and evidence completely–even saying so. The appeals court threw all of her rulings out. Oh, and that judge is now removed completely from the bench, not just my case, but she is no longer a judge. She was having a years-long affair behind her husband’s back and there was some racist behavior that came to light in the middle of that implosion, and she was basically forced to hang up her robe.

  2. I agree. It will backfire. Could tell you a story here, which is not related to bank fraud, occurred over 20 years ago, and related to medical malpractice in which the person died. A former senator got involved in the trial, and potential appointment of the judge.

    Request for recusal request did nothing — and the consequence carried on.

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