Opinion
01 CR. 53 (DLC)
February 13, 2001.
MEMORANDUM OPINION AND ORDER
Defendant M. Laurie Cummings ("Cummings") has requested that this Court consider whether, in an exercise of its discretion, it should recuse itself pursuant to 28 U.S.C. § 455(a). For the reasons discussed below, the Court declines to recuse itself.
A quarter of a century ago, I accepted a temporary position as an associate with the law firm of Curtis, Mallet-Prevost, Colt Mosle LLP ("Curtis"). In 1976, I was accepted for appointment as an Assistant United States Attorney in the Southern District of New York to begin in the Spring of 1977. Curtis employed me, along with two others who had also just completed a clerkship with a federal judge and were also going to be joining the United States Attorney's Office, as a result of an arrangement between Mr. Fleming and the United States Attorney's Office. I worked in the litigation department at Curtis for approximately six months from the Fall of 1976, to March 1977. Mr. Fleming, counsel for Cummings, chaired the litigation department at Curtis during this time period, and directly supervised matters on which I worked. I began work at the United States Attorney's Office on April 20, 1977.
In requesting recusal, Cummings does not assert any personal connection between the Court and herself or any bias or prejudice by the Court towards her as an individual. Rather, Cummings asserts that, because the instant case has received and will receive publicity, this Court's prior relationship with the lawyers and law firm representing Cummings could become a matter of media "reportage."
Title 28, United States Code, Section 455(a) provides: "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The standard for recusal under Section 455(a) is an objective one, applied from the viewpoint of a reasonable person who knows and understands all relevant facts. In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir. 1988). The question is: "Would a reasonable person, knowing all the facts, conclude that the trial judge's impartiality could reasonably be questioned?" United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). Ordinarily, claims of bias or prejudice concern claims that a judge cannot be impartial towards the party appearing before the court.United States v. Helmsley, 760 F. Supp. 338, 342 (S.D.N.Y. 1991). Recusal determinations are within the sound discretion of the court,Lovaglia, 954 F.2d at 815, and there is a "substantial burden" on the party seeking recusal to show the appearance of impropriety. Estate of Amos Ginor v. Landsberg, No. 95 Civ. 3998 (LBS), 1997 WL 414114, at *1 (S.D.N.Y. July 24, 1997) (internal quotation omitted).
In relatively rare circumstances, a claim of bias or prejudice against an attorney may be used to raise a genuine issue as to the judge's ability to render impartial justice to a party represented by the attorney. Universal City Studios, Inc. v. Reimerdes, 104 F. Supp.2d 334, 356 (S.D.N.Y. 2000). When making such a claim, generally a party must show "virulent personal bias or prejudice against the attorney as to amount to a bias against the party." United States v. Jacobs, 855 F.2d 652, 656 n. 2 (9th Cir. 1988); see also Gilbert v. City of Little Rock, 722 F.2d 1390, 1398 (8th Cir. 1983); Davis v. Board of Sch. Comm'rs, 517 F.2d 1044, 1050-52 (5th Cir. 1975); United States v. Oluwafemi, 883 F. Supp. 885, 891-92 (S.D.N.Y. 1995); United States v. Ahmed, 788 F. Supp. 196, 203 (S.D.N.Y.) ("[t]he hostility or bias must be so virulent and of such magnitude that it prejudices the judge against the attorney's client"), aff'd, 980 F.2d 161 (2d Cir. 1992).
In considering a recusal motion, a court must consider carefully the policy of promoting public confidence in the judicial system. In re Drexel Burnham, 861 F.2d at 1312. On the other hand, the Second Circuit has advised that "[l]itigants are entitled to an unbiased judge; not to a judge of their choosing. Id. Thus, "[a] judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is."Id. Where the basis for recusal "is not direct, but is remote, contingent, or speculative," recusal is not warranted. Id. at 1313.
The grounds raised by Cummings would not cause a reasonable person to question the impartiality of this Court. There is no prior connection between the Court and Cummings. This Court's six-month employment with Curtis twenty-five years ago would not cause a reasonable person to question the Court's impartiality in this case, see Estate of Amos Ginor, 1997 WL 414114, at *3-4, just as it could not have caused a reasonable person to question the Court's impartiality in any of the several civil cases Curtis has litigated before this Court over the last six years. Given this record, there is no reasonable basis for questioning this Court's impartiality towards Cummings.
In one of those cases, Mr. Kingham, Cummings' co-counsel, appeared on behalf of Curtis' client. In another, Mr. Fleming's son and namesake represented Curtis' client in a matter that included a bench trial.
SO ORDERED