testified. This court requested further briefing on the legal standard to be applied to the conduct of respondents. Briefs, reporter's transcripts, and further documentary evidence were submitted.
This court is now of the opinion, based upon the legal standards governing the conduct of respondents as criminal defense attorneys and based upon the facts developed in the record,
that the order to show cause should be discharged for the reasons discussed below. Respondents' conduct satisfied their duty of reasonable inquiry, even though their assertions to and about the trial judge were wrong.
In moving for recusal of the trial judge, respondents were exercising legal rights of their clients. Both 28 U.S.C. § 144 (1982) and 28 U.S.C. § 455 (1982) define standards and procedures for recusal.
A United States District Judge is not, and should not be, immune from questions about impartiality or other misconduct. The lack of such immunity is amply demonstrated by the mere existence of Sections 144 and 455. And indeed, if the trial judge had made the statements asserted here, there was certainly good reason for respondents to be concerned about bias and to consider recusal. See United States v. Cooper, 872 F.2d 1, 3-4 (1st Cir. 1989).
On the other hand, a motion to recuse a judge is not just another procedural or evidentiary motion. It is a direct attack on one of the basic principles of our judicial system, the impartiality of trial courts. If such a motion is made when a case is close to trial, it necessarily calls into question the administration of justice. And the making of such a motion impacts unfavorably upon the public's perception of the administration of justice. See Ramirez v. The State Bar of California, 28 Cal. 3d 402, 414, 619 P.2d 399, 169 Cal. Rptr. 206 (1980), and Cal. Bus. & Prof. § 6068(b) and (d) (West 1974 & Supp. 1990).
The question to be answered is what standard of conduct respondents had to meet before bringing such a direct attack on the judicial process. This is in reality two questions: What is the standard? And, did respondents meet that standard here?
In replying to those questions, respondents point to the high duties of vigorous representation which they owed to their clients. Respondents are correct. Attorneys owe high duties to their clients to defend their cases fully, vigorously, and even with arguments which might be offensive or ultimately unsuccessful. This is particularly true in criminal cases, where the clients' liberties are at stake, and where the adequacy of the attorneys' representation can raise constitutional issues. But the obligations which respondents owed to their clients does not answer the dilemma. It merely states the dilemma.
The other side of the dilemma is that defense attorneys are also officers of the court and owe duties, which can be even higher duties, to the administration of justice. That proposition has been reemphasized by the United States Supreme Court. In Nix v. Whiteside, 475 U.S. 157, 89 L. Ed. 2d 123, 106 S. Ct. 988 (1985), the Court said:
We recognize counsel's duty of loyalty and his 'overarching duty to advocate the defendant's cause.' Plainly, that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth.