Canon 3E provides, in part, as follows: "(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) The judge has a personal bias or prejudice concerning a party or a party's lawyer ..."
The Alabama Judicial Inquiry Commission in a similar case concluded that the judge's filing of a complaint against the attorney-litigant with the State Bar is not generally disqualifying. Alabama Judicial Inquiry Commission, Opinion 97-655.
Contempt proceedings are an analogous situation, and recusal is not required there. A treatise explains: 'A judge is not automatically disqualified from presiding over the contempt of court proceedings by virtue of the fact that the allegedly contemptuous behavior occurred in the presence of the judge or was directed at the judge. Even where the contemptuous conduct consists of strong, personal criticism of the judge, disqualification is not necessary. At some point, though, a line will be crossed where disqualification from contempt proceedings is mandated where a judge has become biased or prejudiced. Thus, where a verbal attack upon a judge becomes particularly offensive, or where a judge becomes enraged at offensive conduct, recusal is necessary. Citing Shaman, et al, Judicial Conduct and Ethics, 2d ed., § 4.09.
In Terrell v. Commonwealth, 12 Va. App. 285, 293 (1991), a judge refused to recuse himself after he had reported to the Virginia State Bar that the attorney in the case was not previously prepared for trial. In that case the Court stated: "...assuming arguendo some animosity between the trial judge and defense counsel, that does not suggest that the trial judge would deny a fair trial to the lawyer's indigent client." Further, citing Justus v. Commonwealth, 222 Va. 667, 673 (1981), the court said: "[i]t is within the trial judge's discretion to determine whether he harbors bias or prejudice which will impair his ability to give the defendant a fair trial."
The committee is of the opinion that a judge is not required to recuse himself or herself if an attorney against whom he has filed an ethics complaint is counsel as long as the judge, in the exercise of sound discretion, determines that he does not harbor bias or prejudice which would impair the judge's ability to give the party a fair trial.