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IN RE ORDER TO SHOW CAUSE

April 11, 1990

IN RE ORDER TO SHOW CAUSE

Charles A. Legge, United States District Court Judge.


The opinion of the court was delivered by: LEGGE

This is a proceeding on an order to show cause, issued by another judge of this court, as to why sanctions should not be imposed upon the eleven respondent attorneys. The order to show cause arises from a criminal case in this court, United States of America v. Rudolph Henderson, et al., No. CR-87-0398 (N.D. Cal. filed June 4, 1987). That was a multi-defendant drug prosecution, in which these respondent attorneys were counsel for the defendants.

 I.

 Shortly before the scheduled trial of that case, respondents made a motion to recuse the trial judge under 28 U.S.C. § 455 (1982). The motion was based in part on the alleged personal friendship between the trial judge and the prosecuting attorney, and on the possibility of ex parte submissions having been made by the prosecutor. The motion was also made upon the ground that the trial judge had allegedly made statements to one Ora Green, which if true would indicate bias by the trial judge against the defendants.

 The recusal motion was addressed to the trial judge, and was signed by respondents. It was supported by a joint affidavit of the defendants, and by the declaration of respondents' investigator. The motion was opposed by the United States, and the United States conducted an investigation in connection with that opposition, including an interview with Ora Green. Green recanted the statements attributed to her, and the trial judge signed a declaration unequivocally denying any such conversations with Green. The trial judge referred the portion of the recusal motion based on the statements of Green to another judge of this court for resolution. He denied the recusal motion.

 It is now clear that the statements alleged to have been made by the trial judge to Green were not made. To that extent, the motion to recuse the trial judge contained false information.

 At the conclusion of the criminal case, the trial judge then issued this order to show cause. These proceedings were then assigned to the undersigned judge, under the assignment plan of this court.

 II.

 The order to show cause was issued by the trial judge under the authority of Rule 7-105 of the California Rules of Professional Conduct, which was in effect at the time of the acts of respondents that are in issue here. *fn1" It was also issued under Local Rule 110-3 of this court. By virtue of that rule, each attorney practicing before this court agrees that his/her professional conduct will be governed by certain standards. And Local Rules 110-6 and 110-7 define certain powers and procedures of this court in matters of discipline of attorneys. This court's power of discipline is also an inherent power of a United States District Court. In Re Yagman, 803 F.2d 1085 (9th Cir. 1986).

 III.

 Respondents then moved to discharge the order to show cause as a matter of law. In a written but unpublished order dated September 29, 1989, this court denied that motion and determined that further proceedings were required. An evidentiary hearing was then held, at which one respondent 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, *fn2" 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.

 IV.

 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. *fn3"

 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 ...


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