Conflicts of interest in Bush v. Gore: Did some justices vote illegally?

305. SUP. CT. R. (1999).

306. [sec] 455(b)(5). "The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece." MODEL CODE OF JUDICIAL CONDUCT 4 (1998). Section 455 was adapted from part of the ABA Code. See notes 35-35 and accompanying text, supra.

307. [sec] 455(b)(5)(ii).

308. [sec] 455(b)(5)(iii).

309. 609 F.2d 1101 (5th Cir. 1980).

310. Id. at 1113. Accord Equifax, 557 F.2d at 463 (relative an associate rather than a partner).

311. 557 F.2d 110 (7th Cir. 1977).

312. Id. at 114.

313. Id.

314. Id. at 116-17.

315. In re Kansas Pub. Employees Ret. Sys., 85 F.3d 1353, 1364 (8th Cir. 1996). Accord Jenkins v. Ark. Power & Light Co., 140 F.3d 1161, 1164-65 (8th Cir. 1998); Equifax, 557 F.2d at 463; Stephens v. Stephens, 292 S.E.2d 689 (Ga. 1982).

316. Equifax, 557 F.2d at 463.

317. 609 F.2d 1101.

318. Id. at 1113-14 (emphasis added). Interpreting the Utah version of the Code of Judicial Conduct and noting "the nonpecuniary benefits to the lawyer-relative's firm, such as enhanced reputation and increased goodwill that indirectly benefit the lawyer relative," the Utah Supreme Court adopted the same per se rule. Regional Sales Agency, Inc. v. Reichert, 830 P.2d 252, 256-57 (Utah 1992). For similar reasons, the New Hampshire Supreme Court did the same thing in a case where the judge had apparently had "no contact" with the lawyer-relative "for over twenty years." Blaisdell v. City of Rochester, 609 A.2d 388, 389-90 (N.H. 1992).

319. 557 F.2d at 115-16.

320. 88 F.3d 77, 83-84 (2d Cir. 1996).

321. Id. at 83 (italics added). Interpreting the Pennsylvania version of the ABA Code of Judicial Conduct, the Pennsylvania Superior Court came to a similar conclusion in Reilly v. Southeastern Pa. Transp. Auth., 479 A.2d 973, 980-85 (Pa. Super. Ct. 1984). Some partners are salaried and are not paid out of equity income; presumably, they would be treated like associates in this situation. Nobelpharma AB v. Implant Innovations, Inc., 930 F. Supp. 1241 (N.D. Ill. 1996).

322. 557 F.2d 110. Four other federal appellate cases appear at first glance to have dealt with this issue but actually did not. Although the lawyer-relative posed a [sec] 455(b)(5)(iii) issue in Potashnik, 609 F.2d at 1110-12, the [sec] 455(a) appearance issue also decided there was not based on the lawyer-relative, but primarily on the facts that the firm had represented the judge in the past and one of the partners had had a business relationship with the judge. In In re Billedeaux, 972 F.2d 104 (5th Cir. 1992), the lawyer-relative was a partner in a firm that had represented the opposing party in other cases but not in the one before the judge. In Hook v. McDade, 89 F.3d 350 (7th Cir. 1996), the lawyer-relative's firm had not represented any party before the judge; instead, the lawyer-relative reviewed for an insurance company the legal fees charged by the lawyer in a separate case before he became a criminal defendant in the case at issue. And in In re Nat'l Union Fire Ins. Co., 839 F.2d 1226 (7th Cir. 1988), one of the parties, a bank, retained the judge's son in a credit transaction, but the bank did so at the debtor's request and expense. The son "had recently represented" another hank "in a similar transaction involving the same collateral," and "[t]he debtor, which was to pay [the bank's] legal costs" in the transaction "wanted to avoid the time and expense of educating [the bank's] regular counsel about an unusual transaction." Id. at 1227. Because "the borrower suggested the retention and paid the bill," there was no appearance of impartiality. Id. at 1229. The son was not a partner or an associate in any firm appearing in the case before the judge. Id. at 1230.