I have been researching the issue of motions to recuse in this country for a long time.
I have been reading motions to recuse of different attorneys from various states, and I have been reading materials from disciplinary proceedings against attorneys who made such motions - where such materials are available.
Time after time, I get across the same or nearly the same phrase in those motions:
"in my long career spanning XYZ years this is my very first motion to recuse".
This phrase is presented to the court as - what?
An apology?
A humble proof of due diligence?
A proof of being "a good girl/boy"?
An announcement that the attorney believes that all judges are good and this is an exception?
First of all, when a judge is caught in committing misconduct, telling that judge that all other judges are good (no motions to recuse were made by the attorney in XYZ years, and such motions are extremely rare), but this particular judge is then what - bad, because for him the attorney makes an exception and makes the motion to recuse?
Why an apology?
Why such a long string of explanations?
Why the tail-between-legs position from the outset?
A client the attorney is being paid to represent has a constitutional right to impartial judicial review. Period. It is the attorney's duty to enforce that right for her client.
Unapologetically so.
Apologies are not due to judges who commit misconduct.
Apologies are not due to judges who appear to be partial, or who fail to disclose conflicts of interest.
But, the tail-between-legs position while even making the motion to dismiss shows how far we went in making attorney regulation a tool of suppression of human rights litigation when attorneys, addressing issues of judicial misconduct, must humbly scrape and bow and say - in 20 odd years of my career, this is my very first motion to recuse, Your Honor, and I profusely apologize for even making it.
I will not believe for a second that an attorney who lived his life in courts for those years fails to see rampant judicial misconduct that goes on in American courts every single day.
Attorneys are not stupid, they know what is going on.
For that reason, I have been advocating for a very long time for introduction of peremptory challenges against judges, as well as for rotation of judges, shortening their terms so that they do not become entrenched, making judicial duty same as jury duty - on a rotational per diem basis for all citizens, and canceling regulation of the legal profession and especially taking it out of the hands of the judiciary, so that the lawyer would not look over her shoulder whether or not to make a motion to recuse, and whether or not to fear for her livelihood if she does it.
But, "excuse me, your Honor, you must be a spectacular scoundrel since I have to make a motion to recuse you while I never made such motions against other judges in my whole XYZ years of legal career" - by way of an apology - does not sound right.
No matter how you look at it.
And especially when you look at it from the point of view of short-changed clients on whose behalf such motions had to be made, but were not, because the cases were not "sufficiently egregious" for an attorney to risk his/her law license.
A motion to recuse is a motion is a motion.
You do not wear a badge of honor for never making a motion to dismiss.
Not making a single motion to recuse, as a matter of self-preservation and survival as an attorney, in the context of rampant judicial misconduct in American courts, for the "whole long legal career" is no badge of honor either.
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