Private judges must disclose relationships with counsel

In Jolie v. Superior Court, 2021 DJDAR 7512 (July 23, 2021), the 2nd District Court of Appeal mandated strict and literal compliance with the disclosure obligations of private judges. The court's opinion has significant implications for attorneys with multiple cases pending before the same private judge.

Private judges are authorized by Article VI, section 21 of the California Constitution. Rule 2.832 of the California Rules of Court provides that "[a] temporary judge selected by the parties may not be compensated by the parties unless the parties agree in writing on a rate of compensation that they will pay."

Pursuant to Canon 6D(3)(a)(vii)(C) of the California Code of Judicial Ethics, a temporary judge must "from the time of notice and acceptance of appointment until termination of the appointment" disqualify himself or herself if, for any reason, "a person aware of the facts might reasonably entertain a doubt that the temporary judge would be able to be impartial." This qualification mandate is reinforced by the Canon 6D(5)(a), which requires a temporary judge to disclose in writing or on the record "information that is reasonably relevant to the question of disqualification under Canon 6D(3), including personal or professional relationships known to the temporary judge that he or she or his or her law firm has had with the party, lawyer or law firm in the current proceeding, even though the temporary judge ... concludes that there is no actual basis for disqualification."

Rule 2.831(d) requires that matters subject to disclosure must be disclosed no later than five days after designation as a temporary judge or, as to matters not known at the time of designation, "as soon as practicable thereafter." The temporary judge's failure to make a required disclosure does not justify automatic disqualification. To the contrary, the facts surrounding the failure to timely make a required disclosure and the information ultimately disclosed must be evaluated under Section 170.1(a)(6)(A)(iii) of the Code of Civil Procedure and Canon 6D(3)(a)(vii)(C), which require a temporary judge to disqualify himself or herself if "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." According to the court: "[D]ue to the sensitivity of the question and inherent difficulties of proof as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable man would entertain doubts concerning the judge's impartiality, disqualification is mandated." A temporary judge whose impartiality is questioned must consider how his or her participation in a given case looks to the average person on the street.

The essential facts of Jolie are as follows:

When the temporary judge was initially appointed and thereafter when his appointment was extended, the temporary judge disclosed "a significant history of serving in cases in which [Brad] Pitt's attorney represented one of the parties."

During the pendency of the case, the temporary judge had been engaged by the attorney representing Pitt in two new matters. The temporary judge did not disclose these engagements until Angelina Jolie's attorney inquired.

Jolie's challenge was not predicated on the judge's past professional relationships with Pitt's attorney, but on the expansion of that relationship while her case was before him, as well as his failure to disclose that expansion. Quoting Hayward v. Superior Court, 2 Cal. App. 5th 10, 52 (2016), the court observed: "[P]rivate judges are not insulated in the way public judges are: Unlike public judges, they often have continuing and reciprocal business relationships with the lawyers who appear before them. Because private judges operate within a system in which potential conflicts are likely, adherence to requirements for on the record disclosures and waiver is imperative." In short, the opportunity to disqualify a temporary judge who appears unable to be impartial is a continuing right, and ongoing disclosure on a timely basis is essential for that right to be meaningful. Canon 6 makes such disclosures mandatory in all instances, and a temporary judge is subject to challenge under Canon 6D(3) even if a new professional relationship has been disclosed in a timely manner.

The Jolie court concluded that because the private judge accepted new matters, thereby renewing and expanding a relationship with lawyers who had in the past attained the status of significant repeat players, and failed to voluntarily disclose those matters to Jolie and her new lawyer, who had no prior professional relationship with the judge, the person on the street might reasonably entertain a doubt as to the judge's ability, consciously or subconsciously, to remain impartial.

The implication of the court's holding is especially significant when only one side of the case is represented by counsel who regularly uses the services of a privately compensated judge. In Jolie, Pitt's attorney was a significant repeat player, whereas Jolie's new attorney had no prior professional relationship with the temporary judge. Simply put, the purpose of the disclosure requirements is to diminish the advantage of steady customers over one-time customers.

A temporary judge's failure to disclose new matters in a timely manner when both parties in the case before him are represented by repeat players is less likely to raise legitimate doubts about the judge's impartiality.

In an effort to avoid future challenges to a temporary judge's impartiality based on an analysis of the facts involved in each case -- for example, that one of the attorneys is a repeat player and the other attorney is not -- the court stated in footnote 13:

"We urge the Judicial Council to consider adopting a rule of court ... that mandates disqualification of a privately compensated temporary judge who has violated his or her disclosure obligations under canon 6 and Rule 2.831(d)."

Adopting such a rule would go a long way toward ensuring strict compliance with a temporary judge's disclosure obligations, thereby promoting public confidence in his or her impartiality.

Even if such a rule is not adopted, it is virtually certain that private judges and the various providers with whom they are affiliated will institute procedures to ensure strict compliance with the disclosure obligations applicable to temporary judges. The effect on the attorneys who employ them is harder to predict.

In the public system, "judge shopping" by attorneys is historically looked upon with disfavor. In contrast, family law attorneys legitimately place matters with private judges in whom they have confidence because of their impartiality, knowledge of the subject matter, prior experience as public judges, judicial temperament and other pertinent considerations; hence the characterization of those attorneys as "repeat players" by the appellate court. Whether and to what extent the holding in Jolie will cause repeat players to diversify the inventory of private judges that they routinely employ remains to be determined. 