Can’t we be friends?

So let's look at what the Maine SJC has been up to, opinion-wise.  A fairly recent decision of note relates to judicial recusals – Samsara Memorial Trust v. Kelly, Remmel & Zimmerman, 2014 ME 107.

The bottom line is that the Court rejected an argument, raised for the first time at the appellate level, that Superior Court Justice Cole should have recused himself from a case involving a dispute between a law firm and ex-client because Justice Cole was friends with a former Superior Court Justice who was now an attorney at the firm (ex-Justice Crowley.)   

The two takeaways on this issue from the decison are pretty no-brainers:  (1) if you want to move to recuse trial counsel, do it early and certainly not at the appellate level; and (2) don't move for recusal based on something like friendship.  As the Court (Mead, J.) says repeatedly in the decision, Maine has a very small bar.  Everyone knows everyone else.  A social relationship is not enough. 

On the first point, the Court noted that the argument that the ex-client didn't know about the purported relationship earlier was "suspicious," because, first, the ex-client didn't say exactly when they did learn about it, and second, in arguing that the Law Court should take judicial notice of the relationship (since there was nothing in the record), the ex-client said that this friendship was "well known."  In any event, even if you do legitimately find out about some relationship that would warrant recusal after things are done at the trial level, procedurally, you still don't raise it in an appeal.  Rather, you have to file a Rule 55(c) or 60(b) motion in front of the Superior Court.  The SJC also found that the assertion of a Cole-Crowley friendship was not a proper subject for judicial notice, and was unimpressed by the ex-client's citation of a newpaper article that made passing mention of such a friendship.  Nor was the Court particularly pleased by the argument that the ex-client's attorney (John Branson) made at oral argument that he "had polled local attorneys regarding their opinions of the relationship between Justice Cole and Crowley," noting that in making this argument, the lawyer "inappropriately attempted to introduce facts at the appellate level" and "the proffered statements of the polled attorneys constitute subjective and unverified opinions that are inappropriate sources for judicial notice."

Because the argument came so late, the Court reviewed it based on obvious error.  Given that there was nothing in the record, I'm not exactly sure how they could assess the claim on the merits at all, but perhaps it was seeking to make a point.  In any event, the Court said the legal and judicial communities in Maine are small.  In a footnote, the Court noted that the ex-client's counsel "expressed surprise that judges will often have lunch together."  In response, Justice Mead said, "[t]o be clear," there are only 60 active state court judges, and they are "encouraged to mainain collegial relationships."  There are only 3800 active in-state lawyers, and we're supposed to get along, too.  And judges and lawyers are supposed to get along with each other, at events like "lunches, dinners, golf tournaments, and hockey games." 

It is "unavoidable, and indeed desirable, that judges who serve on the bench together will necessarily develop close professional relationships.  We do not expect that such cordial relationships will end if a judge leaves the bench and returns to the practice of law."  The Court cited a decision from Washingston state stating, "[u]nless a judge in a small community was a hermit or a newcomer to the region (neither of which is a good foundation for the position) before assuming the bench, the judge will necessarily have had relationships — business or personal — with most of the attorneys in the community.  That is not necessarily a bad thing."

Well, all I can say is this is good news.  Justice Crowley lives down the street from me and I've seen him from time to time, incuding when he was on the bench, as I walk my dogs.  We have waved cordially to each other.  I'm glad to know that neither of us was violating an ethical rule when we did so.

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