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Recusal Follies

By James M. Beck and Mark Herrmann

Last week we encountered arguments from the other side that any justice (at least any justice that might be defense oriented) owning any stock in any pharmaceutical company ought to recuse him/herself from Wyeth v. Levine because that ruling might affect the stock price of any drugmaker - even though not currently involved in the case.

This week, the recusal craziness focuses on the Sprint Fidelis litigation, according to an article in today's Wall Street Journal (subscription required). The plaintiffs in that MDL - having lost big-time on preemption - are apparently now seeking to recuse the judge, Hon. Richard Kyle, because his son represents the defendant (Medtronic) in unrelated, non-litigation matters.

We've been practicing a long time, and can't remember ever seeing a recusal under such circumstances. First, it's not the judge himself, but a member of his family. Second, it doesn't involve any law firm that's ever been involved in the litigation. Third, it doesn't even involve a positional conflict - the son's representation of Medtronic apparently was limited to business advice (mergers and intellectual property, according to the article).

If this toxic mixture of crocodile tears and sour grapes goes anywhere, we might as well just set a rule that none of a federal (or state, there doesn't seem to be any ethical difference) judge's relatives can practice law. That's what the argument that the plaintiffs are making comes down to.

What's a judge supposed to do? Must the judge require every one of his/her lawyer relatives to run a conflict check for every party to every matter (a judge can have hundreds of cases on his/her docket at any given time) that s/he gets assigned?

We sure hope not. Judges aren't paid enough for what they have to do as it is.

This sort of recusal mania has nothing to do with ethics. It's simply forum shopping by another name.

It's hard for us to have much sympathy with the plaintiffs' position. We haven't seen any plaintiffs' lawyers express any problem in litigating cases before state-court judges to whom they (or their firms) have given large campaign contributions. Some enterprising investigative reporter should take a look at the campaign contributions of the plaintiffs' firms active in the Sprint Fidelis (or any other mass tort) litigation.

If there needs to be any expansion of the reasons for judicial recusal, and we're not entirely convinced that there is, it's not in the area of a relative's representation in matters having nothing to do with anything. The area that needs to be looked at is campaign contributions. There should be some process for seeking recusal of a judge where s/he has received significant campaign contributions from the lawyers or other members of the law firms representing actual parties to actual litigation.

A recusal rule in this area would forestall a lot more funny business - and a lot more actual impropriety - than any of this bleating that we've heard lately about recusal for indirect, incidential economics or relatives' unrelated representations.

Full post as published by Drug and Device Law on February 13, 2009 (boomark / email).