No Recusal When Judge's Ex-Clerk, Who Clerked While Case Was Pending, Now Works for a Law Firm in the Case

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From a decision on April 21 by Judge James L. Robart (W.D. Wash) in Straw v. Avvo, Inc.:

Mr. Straw assert[s] claims against Defendant Avvo, Inc. … for defamation; tortious interference with prospective contractual relations; intentional infliction of emotional distress; and violations of Title II of the Americans with Disabilities Act. These claims arose from statements that Avvo published on Mr. Straw's profile in a directory of lawyers on the Avvo.com website….

[T]he court granted Avvo's motion to dismiss Mr. Straw's amended complaint and granted Mr. Straw leave to amend. Straw filed his second amended complaint[, but] … the court granted Avvo's motion to dismiss Mr. Straw's second amended complaint—this time with prejudice and without leave to amend—because Mr. Straw did not address the deficiencies identified in the court's prior order. Mr. Straw appealed the dismissal to the Ninth Circuit Court of Appeals. His appeal is still pending….

Mr. Straw … argues that recusal is necessary because Avvo's law firm, Davis Wright Tremaine LLP ("DWT"), employs an attorney who formerly served as one of the undersigned's law clerks while Mr. Straw's case was pending in this court. He contends that "the existence of [the law clerk] on the roster of attorneys at DWT … favors the trial judge's clerk, his firm, and that firm's clients." As a result, according to Mr. Straw, the undersigned violates his duty to be fair and impartial by continuing to preside over this case.

Mr. Straw asserts that because "Avvo has been wrong so severely in injuring [him] and with its false statements to courts and poor ethical judgment, taking data not allowed to be republished and publishing it to injure [him] over [his] objections, [he] want[s] a trial judge who has NO CONNECTION whatsoever to Avvo, its parent companies, or its lawyers." If there is no such judge in this district, he asks that the Chief Judge of the Ninth Circuit "find someone who is unconnected and disinterested." …

The undersigned declines to recuse … from this case. The fact that a former law clerk now works for a law firm that represents a party in a matter before the court does not, without more, provide a basis for recusal. See Omni Innovations LLC v. Smartbargains.com LP, No. C06-1129JCC, 2009 WL 3248084, at (W.D. Wash. Oct. 9, 2009) ("A rule barring former law clerks and externs, much less their entire law firms, from appearing in a particular court would be unreasonable and unjustified.").

Moreover, the attorney to whom Mr. Straw refers in his motion did not work on Mr. Straw's case while he served as a law clerk and, according to DWT, has not worked on Mr. Straw's case since joining that firm. See Hussain v. Nevada Sys. of Higher Educ., 458 F. App'x 659, 662 (9th Cir. 2011) (affirming denial of motion to disqualify judge where defense counsel's firm employed former law clerk and where former clerk did not work on case); see also Wash. R. Prof'l Conduct 1.12(a) (providing that a former judicial law clerk may not represent a party in a case in which the former clerk participated personally and substantially while employed as a clerk). Because the undersigned harbors no bias against Mr. Straw or in favor of Avvo or its attorneys, he declines to recuse himself ….

Under Western District of Washington local rules, the recusal question went to Chief Judge Ricardo S. Martinez, who on Tuesday likewise declined to require recusal:

After filing his appeal, Plaintiff sought to have Judge Robart voluntarily recuse himself from Plaintiff's case in the event any further district court proceedings occur. Plaintiff bases his request upon his discovery that one of the more than 500 lawyers employed by Davis Wright Tremaine LLP ("DWT"), local counsel for Defendant, formerly clerked for Judge Robart. Plaintiff alleges that "[t]his was more than a little reason for the trial judge to favor [Defendant]." Due to Plaintiff's prior experience in an unrelated Indiana action, he indicates that he has "a zero tolerance for such connections, such favoritism due to clerkships," and that "[t]he existence of [a former clerk] on the roster of attorneys at DWT is enough" to make a judge impartial.

A "judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." This includes circumstances where the judge has "a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Recusal is appropriate if "a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." This is an objective inquiry concerned with whether there is the appearance of bias, not whether there is bias in fact.

Plaintiff has not set forth a basis upon which Judge Robart's impartiality may reasonably be questioned. Plaintiff does not allege that Judge Robart's former clerk has worked on this matter on behalf of Avvo. Plaintiff does not allege that Judge Robart's former clerk has any information related to the case that is not in the public record. Plaintiff does not allege that any communication related to his case has occurred between Judge Robart and his former clerk.

Rather, Plaintiff speculates, without a factual basis, that Judge Robart will favor the clients of a large firm that now employs a single attorney who previously clerked for Judge Robart. Such speculation does not establish an objective basis to conclude that Judge Robart's impartiality can reasonably be questioned.

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  1. Is different from working as working as a court clerk on cases you’re prosecuting?

  2. TwelveInchPianist: It’s more like not having worked as a court clerk on cases you are not prosecuting: “the attorney to whom Mr. Straw refers in his motion did not work on Mr. Straw’s case while he served as a law clerk and, according to DWT, has not worked on Mr. Straw’s case since joining that firm.”

  3. The clerk will have valuable insider information on the workings and the preferences of his former court. Both the former clerk and the judge should lose their licenses for their unethical, insider conduct.

    1. A serial rapist and murderer of children has lower morals than a federal judge. Maybe. No one of that ilk should be allowed to regulate itself.

    2. How is the former clerk at fault here? He is not working on the case and very likely had nothing to say about whether his firm accepted the case. Even if the judge should recuse, how has the former clerk acted improperly?

      1. His employer will ask him how to best proceed to persuade his former employer. He has valuable insider knowledge. The firm should be disqualified as well.

  4. Who is the injured party if a recusal is ordered? Seems like a simple request. Only the ego of judges is the driving legal principle.

    1. The new judge who will have to learn the case from scratch, the other litigants with cases assigned to that judge who will have attention diverted from their matters, and Avvo, which will face further delays in responding to what seems to be a meritless complaint.

      A judge trying to do his job instead of shirking it seems like the antithesis of an objectionable disp;any of ego.

  5. Judging from the excerpts here including the past case mentioned, it seem Straw may be a little peculiar.

    1. Yes, I’d agree that a review of the complaint strongly suggests mental illness. I hope Mr. Straw finds the help he needs (and that he stops filing frivolous lawsuits in the meantime).

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