Waiver of Disqualification

Rule 2.11(A) directs a judge to disqualify herself whenever her impartiality might reasonably be questioned, and it lists circumstances where the directive applies.¹ The language is mandatory, which suggests that the parties have no say. Yet most listed grounds protect the litigants, and a person who holds a protection can ordinarily give it up once she knows what it covers. A stake in the outcome, a relative's role in the case, an earlier role in the matter: each threatens the parties' entitlement to a decision-maker with no reason to favor either side. When the parties, informed of the ground, agree that the judge may keep the case, the disqualification is waived. A judge who learns that she holds an economic interest in a party, a ground covered earlier in this chapter, presents the kind of problem the parties may be willing to release.²

Waiver needs conditions because consent is requested in an awkward setting. The parties are asked to excuse a defect in the person who will decide their case. A litigant who refuses may fear that the refusal will be remembered, and one who agrees may be only avoiding offense. Consent given under that pressure protects no one, so the rules require disclosure, privacy for the parties' deliberation, and a record of the result. The conditions cannot rescue every ground. The Model Rule withholds waiver from the personal bias or prejudice described in Rule 2.11(A)(1),³ probably because bias is a state of mind toward the people in the case, and agreement can neither test nor cure it.

Two questions organize what follows. The first asks which grounds the parties may release, and the Model Rule and the federal statute answer it differently. The second asks what the judge and the parties must do for a release to count. Both answers rest on one premise: a waiver is valid only as an informed choice by the people the ground protects.

What May Be Waived

Rule 2.11(C) of the Model Rules of Judicial Conduct decides which disqualifications the parties may release, and it makes a single exception. A judge subject to disqualification under the Rule, “other than for bias or prejudice under paragraph (A)(1),” may disclose the basis on the record and ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive it.⁴ If the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate, and the agreement must be incorporated into the record of the proceeding.⁵ Waiver is therefore the default. The general appearance clause and every enumerated circumstance, whether a relative's role, an economic interest, a campaign contribution, a public commitment, or a prior role in the matter, can be released by informed agreement. Personal bias or prejudice is the one ground placed beyond the parties' reach.⁶

The default follows from whose interests the grounds protect. Most of them rest on a fact that disclosure can put on the record: a relative's appearance as counsel, a block of stock, an earlier job, a campaign gift. Once the fact is visible, the litigants it affects can weigh it for themselves. They may sensibly conclude that it does not trouble them, or that the delay and expense of starting over before a new judge cost more than the risk. A rule that forbade them to make that choice would protect them against their own informed judgment.

What happens when a judge is biased and every party agrees to let her stay? Nothing changes: she must step aside. Rule 2.11(A)(1) requires disqualification for a personal bias or prejudice concerning a party or a party's lawyer, and (C) withholds waiver for exactly that ground.⁷ The explanation lies in what bias is. A stock certificate can be listed and measured, but a leaning toward or against a person cannot be inspected in advance, and it surfaces unevenly in credibility findings, discretionary rulings, and the weight given to argument. The waiver is also requested of the very litigant the bias works against, who has reason to fear that refusing will make matters worse. An agreement given under that pressure says nothing about whether the risk has actually been accepted, so the Rule takes the question out of the parties' hands.

The exception is narrower than the paragraph it names. Rule 2.11(A)(1) contains two grounds, personal bias or prejudice and personal knowledge of facts in dispute, but the carve-out in (C) refers only to bias or prejudice under (A)(1).⁸ On the text, then, a judge's personal knowledge of disputed facts may be waived like any other ground after disclosure. Knowledge, unlike a disposition toward a person, has content that the judge can state on the record and the parties can weigh. A judge who nurses a grudge against a party and a judge who learned the disputed facts at a neighbor's dinner table both sit under paragraph (A)(1), yet only the first is beyond waiver. The usual exam error treats all of (A)(1) as non-waivable because bias lives there, and the text does not support that reading.

The federal statute reverses the proportions. Section 455(e) of Title 28 forbids a judge to accept a waiver of any ground listed in § 455(b), even when all parties agree, and it permits waiver of a ground under the general appearance standard of § 455(a) only after full disclosure on the record of the basis for disqualification.⁹ The Supreme Court described the same arrangement in Liljeberg, observing that a judge may not accept a waiver of any § 455(b) ground but may accept one under § 455(a), and it called § 455(b) “a somewhat stricter provision.”¹⁰ The only waivable federal ground is therefore the broad one, and the specific list is closed.¹¹ The closure reaches grounds the Model Rule lets the parties release, such as the judge's earlier service as a lawyer in the matter and her role as a material witness. Those grounds cannot be waived in federal court when they arise under § 455(b).¹²

The structure of the statute explains the difference. The appearance clause asks how a situation looks to an informed observer, a question the people most affected can answer for themselves once they know the facts. The specific grounds fix in advance that certain facts disqualify the judge, whatever the situation looks like. Section 455(b)(4), for example, requires disqualification for any financial interest, however insubstantial, whether or not the interest creates an appearance of impropriety.¹³ Where the statute has already settled the answer without asking about appearances, the parties' comfort with the judge leaves nothing for a waiver to decide. If a litigant could release a listed ground by recasting it as an appearance problem, § 455(b) would add nothing to § 455(a).

A Model Rule jurisdiction treats the stockholding differently. It falls under the economic-interest ground of Rule 2.11(A)(3), subject to the de minimis threshold covered earlier in this chapter. Because that ground is not bias, the parties may release it after the disclosure and private conference that (C) prescribes.¹⁴ The same stockholding thus yields opposite answers in the two systems, while a friendship that raises only an appearance question is waivable in both.

Exam Analysis Steps

Because the answer depends first on which system governs, identify the regime before looking at the ground. The steps are these:

Identify whether the problem arises under the Model Rule or under the federal statute, since the two draw the line between waivable and non-waivable grounds in different places.
Under the Model Rule, identify the ground. If it is personal bias or prejudice under (A)(1), conclude that no waiver is possible however many parties agree.
Under the Model Rule, treat every other ground as waivable, including the personal-knowledge clause of (A)(1), the general appearance clause, and the enumerated circumstances.
Under the federal statute, ask whether the ground is one listed in § 455(b). If it is, the judge may not accept a waiver. If the objection rests only on the appearance standard in § 455(a), allow a waiver preceded by full disclosure on the record.
If waiver is available, turn to the procedure required for an effective release, which the next subsection takes up.

The first step does the sorting, because the same fact can be waivable in one system and closed in the other. The second and third steps keep the personal-knowledge clause from being swept into the bias exception.

Waiver Procedure

Rule 2.11(C) turns a disqualified judge's wish to continue into a valid waiver in three steps, taken in a fixed order. A judge subject to disqualification on any ground other than personal bias or prejudice under paragraph (A)(1) may disclose the basis on the record and ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive it.¹⁷ If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding.¹⁸ The agreement must then be incorporated into the record.¹⁹ The previous subsection explained which grounds the parties may release. This one assumes a waivable ground and asks what must happen before the release counts.

Each step answers a weakness in the way consent is obtained from litigants. A lawyer who must appear before the judge for the rest of the case is poorly placed to say that the judge's connection to the case troubles the client, since a refusal may be remembered and an agreement costs nothing in the moment. Consent given in the judge's presence therefore says little about whether the risk has actually been accepted. The procedure responds in three ways. Removing the judge and court personnel from the room takes away the audience whose reaction the lawyers fear. Requiring agreement without their participation keeps them from steering the result. Incorporating the agreement into the record leaves proof that the choice was made, by whom, and after what disclosure. Beneath all three sits disclosure, because a party cannot meaningfully waive what it does not know.

Disclosure carries more weight than its position suggests. The judge is usually the only person who knows the details of her own finances, friendships, and earlier work, so the parties can raise only what she chooses to reveal. Model Code commentary reflects that imbalance: a judge should disclose on the record information that she believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if she believes there is no basis for disqualification.²⁰ The commentary reaches the judge who doubts that any ground exists, because disclosure of a doubtful connection lets the parties decide for themselves whether to move. The waiver request in Rule 2.11(C) is a separate step, open to a judge who is subject to disqualification.

Nondisclosure leaves the parties nothing to weigh, and In re Al-Nashiri shows what it costs. The D.C. Circuit said that the judge's lack of candor would lead a reasonable observer to wonder whether he had done something worth concealing.²¹ The court noted by comparison that the Rules for Military Commissions permit the parties, in some circumstances, to waive judicial disqualification only if the waiver is preceded by a full disclosure on the record of the basis for disqualification.²² The case displays the hazard that Rule 2.11(C) addresses by putting disclosure first.

A judge who has disclosed may be tempted to ask in open court whether anyone objects to her staying. A federal appellate decision explains why the Model Rule does not leave the request that casual. The court quoted a 1971 resolution of the Judicial Conference of the United States, which warned that advising counsel of a possible conflict and asking them to indicate approval of the judge's remaining “is fraught with potential coercive elements which make this practice undesirable.”²³ The court added, citing another decision, that “[j]udges should refrain from asking for the views of counsel on these questions.”²⁴ Rule 2.11(C) answers that concern by structure. It permits the request only in a form that removes the pressure: the judge states the basis on the record, leaves the deliberation to the parties and lawyers, and learns only the outcome.

The second and third steps turn on who is in the room. The text excludes court personnel as well as the judge. A clerk, bailiff, or staff member works alongside the judge, so anything that person overhears or contributes can travel back to her, and a lawyer who senses that risk will hold back just as he would before the judge. The agreement must come “without participation by the judge or court personnel.”²⁵ The rule also speaks of agreement by “the parties and lawyers,” so every side's consent is required and one side's cannot stand in for another's.²⁶ The reason follows from whose protection is being given up. The guarantee of a decision-maker with no reason to favor either side belongs to each litigant, so a party that has not agreed has released nothing. Even a complete agreement only permits the judge to continue, because the rule says she “may” participate and does not say she must.

The last step is stated in mandatory terms: “The agreement shall be incorporated into the record of the proceeding.”²⁷ The record makes the waiver verifiable. A reviewing court can see that disclosure came before the agreement, that the parties and lawyers reached it without the judge, and that the consent was given in this case. Without a record, a later dispute over whether anyone agreed would turn on competing recollections.

Fact patterns on this subject usually leave out one step, so the steps are worth testing against facts that omit them.

Hypothetical Illustration

Before a pretrial conference, a judge mentions in chambers that his college roommate is a partner in the firm representing the defendant, then asks both lawyers whether anyone minds his keeping the case. Both lawyers, standing in front of him, say they have no objection, and nothing is placed on the record. The request was made with the judge present, the consent was given under his eye, and no record exists, so no waiver has taken place and the ground remains.

In another case the judge discloses a comparable connection on the record and leaves the courtroom with her staff. The plaintiff's lawyer is ready to agree, but the defendant's lawyer says the defendant wants a different judge. The parties and lawyers have not agreed, so the judge may not continue on the strength of the conference.

A waiver that holds up supplies each element in order.

Exam Analysis Steps

Because each step of the procedure protects the one that follows, run them in order and check each against the facts. The steps are these:

Confirm that the ground is one the parties may waive, since personal bias or prejudice under paragraph (A)(1) is excluded and no procedure can cure it.
Ask whether the judge disclosed the basis for disqualification on the record, fully enough that the parties and lawyers know what they are being asked to waive.
Ask whether the parties and lawyers considered waiver outside the presence of the judge and court personnel, and whether either the judge or the staff took part in the discussion or the decision.
Ask whether all of the parties and lawyers agreed that the judge should not be disqualified, treating the agreement of only one side as insufficient.
Ask whether the agreement was incorporated into the record of the proceeding, and allow the judge to continue only if every earlier step is met.

Fact patterns most often fail at the third and fourth steps, because a judge's presence and a one-sided agreement are easy to build into a story and easy to overlook. The second step cannot be skipped even when the judge is certain she can be fair, since the parties' choice is valid only when it is informed.