how to file a motion to recuse attorney california federal court

by Marjory Konopelski 6 min read

What is a motion to recuse a judge?

had an opportunity to be heard. Therefore , before the court can hear or consider your motion you MUST : A. GIVE PROPER NOTICE OF THE MOTION TO ALL OPPOSING SIDES. B. GIVE A COPY OF THE MOVING PAPERS (the papers you file with the court for the motion ) TO ALL OPPOSING SIDES. 2. How Do I Give Notice of the Motion To the Other Sides?

What does it mean to recuse a case?

A motion to recuse is a legal motion filed in court that says a judge should be disqualified, or removed, from a legal case. In the context of CCP 170.6, the motion would state that a judge should be removed because he/she is biased. The motion can be brought by either a prosecutor or a defense attorney, or a plaintiff or defendant. And, a motion to recuse can be filed in either …

How to file a motion to remove a judge?

The Gist of this Article: A Motion to Recuse a Prosecutor under Penal Code § 1424(a)(1) must show there is an actual or apparent conflict of interest caused by factors extraneous to the prosecutor’s official duties such that defendant will not received a fair trial. The prosecutor most likely will deny such a conflict of interest exists.

How to write a request for recusal from a case?

The requirements for a motion for recusal or disqualification motion are fairly well-established. The party seeking recusal or disqualification must file a motion explaining that the party fears that it “will not receive a fair trial . . . on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party.” § 38.10, Fla. Stat. (2014).

What is a motion for recusal?

What is a motion to recuse? A motion to recuse is a legal motion filed in court that says a judge should be disqualified, or removed, from a legal case for a reason listed within CCP 170.1. The motion can be brought by either a prosecutor or a defense attorney.

How do I disqualify opposing counsel in California?

The basis for a motion to disqualify opposing counsel is generally that a conflict of interest exists because that attorney has previously represented the client, and as a result of that representation gained confidential information which could be used to harm the former client's interests in the case.

How do you recuse a federal judge?

Judges recuse themselves when they take no part in deciding cases that they would otherwise help decide. The Due Process clauses of the United States Constitution require judges to recuse themselves from cases in two situations: Where the judge has a financial interest in the case's outcome.

What is a disqualification motion?

A party can move to disqualify a judge for cause at any time during a case. In any given courthouse, you will likely find a party to a legal case (civil or criminal) who is convinced that the judge is not fair.Nov 5, 2018

What does a conflict of interest mean with a lawyer?

A conflict of interest is defined as a conflict between professional duties and private interests, or when there is a conflict between the duty to one client and another. As you know, this term always has a negative connotation, as well it should.May 20, 2019

When should a judge recuse himself or herself from a case?

The decision to recuse generally comes from the judge herself as it rests on the conscience and discretion of the judge to disclose any potential conflict of interest. In some circumstances, lawyers or parties in the case bring it up before the judge.Jun 23, 2021

What happens if a judge recuse himself?

Some jurisdictions, however, require another judge to decide whether or not the presiding judge should be disqualified. If a judge fails to recuse himself when a direct conflict of interest exists, the judge may later be reprimanded, suspended, or disciplined by the body that oversees JUDICIAL ADMINISTRATION.

Do Supreme Court justices ever recuse themselves?

In the Supreme Court of the United States, the Justices typically recuse themselves from participating in cases in which they have financial interests.

What does it mean to disqualify a lawyer?

Vicarious Disquaification. Disqualification is vicarious when a court disqualifies a lawyer be- cause he or she was a member of a firm that previously represented the. adverse party or when a court disqualifies a firm because one of its. members previously represented the adverse party.

What is a motion to disqualify?

A motion to disqualify tests whether the opposing party’s right to counsel of his or her choice, which is an important right, “must yield to ethical considerations that affect the fundamental principles of our judicial process.”.

Who is Julie Pavlina?

Plaintiff Julie Pavlina San Giorgio (“Julie”) has filed a motion to disqualify the firm of Farella Braun & Martel (“Farella”), counsel for Defendant and Cross-complainant Stephen Pavlina, Jr. (“Stephen”).1 “A trial court’s authority to disqualify an attorney derives from the power inherent in every court ‘ [t]o control in furtherance of justice, the conduct of its ministerial officers, and of all...

What is a motion to recuse?

A motion to recuse is a legal motion filed in court that says a judge should be disqualified, or removed, from a legal case. In the context of CCP 170.6, the motion would state that a judge should be removed because he/she is biased.

What is the code of civil procedure in California?

Code of Civil Procedure 170.6 CCP is the California statute that says a judge can be disqualified, or removed, from presiding over a civil lawsuit or a criminal trial if the judge is prejudiced against a party or attorney. In particular, the statute states: “A judge, court commissioner, or referee of a superior court of the State ...

What is a peremptory challenge?

Please note that when a party tries to challenge, or disqualify, a judge on the basis of prejudice, the challenge is often referred to as a “ peremptory challenge .”. “ Disqualification ” means that a judge is removed from a court case and an alternate judge gets assigned to the proceedings.

What is a challenge for cause?

A “ for cause ” challenge means that a party can try to disqualify, or remove, a judge if certain circumstances are present (e.g., the judge has a personal interest in the case). In addition to challenges for cause and peremptory challenges, a judge can be removed in California based upon:

What is the CCP code?

California Code of Civil Procedure 170.1 (a) (6) CCP. Code of Civil Procedure 170.6 CCP is the California statute that says a judge can be disqualified, or removed, from presiding over a civil lawsuit or a criminal trial if the judge is prejudiced against a party or attorney. In particular, the statute states: “A judge, court commissioner, ...

Can a judge be removed for cause in California?

California Code of Civil Procedure 170.1 states that a party can try to remove a judge “ for cause .” 7. Under CCP 170.1, a judge can be removed “ for cause ” if any one or more of the following are true: the judge has personal knowledge of disputed facts in the case,

What is worse for an attorney than getting a new big matter?

Few things are worse for an attorney than getting a new big matter, starting work on it, and then facing a motion to disqualify. At that point, the attorney is put in the awkward position of either explaining to the client why he or she should pay more money to keep the attorney, or absorbing the fees associated with defending ...

What is insider information in litigation?

Frequently, a former client accuses the attorney of having “insider information” regarding the client that does not rise to the level of a client confidence. Indeed, even if the attorney does not possess any direct information regarding the present lawsuit or transaction, the client may say that the attorney understands how the client thinks and acts. The attorney may know the client’s bottom line for settlement or how the client prefers to approach litigation. This is often referred to as “playbook knowledge”—the attorney knows the client’s paths and approaches.

How Does A Party Attempt to Disqualify A Judge?

  • If one of the reasons within CCP 170.1 exists, then a party can attempt to disqualify a judge by: 1. filing a motion to recuse, and 2. following the proper procedural elements as to filing this motion.
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What Are Peremptory Challenges of A Judge?

  • Challenges “for cause” and different than peremptory challenges of a judge. A “peremptory” challenge means that a party can file a motion to recuse and try to remove a judge on the basis that he/she is biased.13 When bringing a peremptory challenge, it is not necessary for the party to show that the judge is actually biased. It is also not necessary for the party to provide any factua…
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Are There Other Grounds For Removal of A Judge?

  • In addition to challenges for cause and peremptory challenges, a judge can be removed in California based upon some statutes and the State Constitution. For example, California Probate Code 7060allows for the disqualification of probate judges in some circumstances. Further, the California Constitution provides for the disqualification of judges who have been either indicted …
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For Legal Representation…

  • For questions on motions to recuse a judge in Colorado, please see our article on How to File a “Motion to Recuse a Judge” in Colorado. For questions about seeking to recuse a prosecutor, please see our article on Can You Request a Different District Attorney?.
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Standing

  • Only a party who has (or has had) a fiduciary relationship with a lawyer has standing to disqualify the lawyer. Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1355. Some cases hold that the complaining party must prove a present or past attorney-client relationship with the attorney who is the target of the motion. Earl Schei...
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Two-Pronged Test

  • The courts apply a two-pronged test to determine whether the court must conclusively presume that an attorney has knowledge of confidential information about a prior client that requires the court to disqualify the attorney from representing a current client adverse to the prior client. First, there must be a “substantial relationship” between the former representation and the current rep…
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Policy Considerations

  • “Motions to disqualify counsel are especially prone to tactical abuse because disqualification imposes heavy burdens on both the clients and courts: clients are deprived of their chosen counsel, litigation costs inevitably increase and delays inevitably occur. As a result, these motions must be examined ‘carefully to ensure that literalism does not deny the parties substantial justic…
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The Court’S Decision

  • Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113. In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. Id. In ruling on a motion to …
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