OCT - 2 2% IN THE SUPREME COURT OF APPEALS OF WEST VIRGINI DOCKET NO. 17-0126 (Appeal from Civil Action No. Circuit Court of Ohio County) ROBERT ANDREWS, et al., Appellants/Petitioners, V. ANETERO RESOURCES CORP. ,et 31., Respondents/Appellees. APPELLANTS DEBORAH G. ANDREWS, RODNEY AND KATHERINE ASHCRAFT, GREGG D. MCWILLIAMS MARY MIKOWSKI, AND ROBERT AND LORETTA SIDERS MOTION FOR DISQUALIFICATION DIRECTED TO JUSTICE EVAN JENKINS Anthony J. Majestro (WVSB 5165) James C. Peterson (WVSB No. 2880) Counsel of Record Aaron L. Hanah (WVSB No. 9937) POWELL MAJ ESTRO, PLLC HILL, PETERSON, CARPER, BEE DEITZLER, 405 Capitol Street, Suite P1200 PLLC Charleston, WV 25301 500 Tracy Way Phone: 304?3 46?2 889 Charleston, West Virginia 2531 1 Fax: 304-346-2895 (304) 345-5667 amaj estro@powellmaj estro.com (304) 345-1519 (facsimile) jcpeterson@hpobd.com Counsel for Appellants - - INTRODUCTION Appellants, by their undersigned counsel, and pursuant to Rule 33 of the West Virginia Rules of Appellate Procedure, move and request that Justice Evan Jenkins disqualify himself from participating in this appeal. Appellants? Motion to Disqualify is not done and in no way should be viewed as an attack on Justice Jenkins. Rather, recusal is required because his counsel, who appeared in this Court barely a week ago as counsel for Justice Jenkins is counsel of record for Respondent Antero. Prior to ?ling this Motion Appellants sought an expert opinion from former West Virginia Bar Counsel, Robert H. Davis who has provided an af?davit. His Af?davit and CV are attached and incorporated into this Motion. See Expert Af?davit of Robert H. Davis, Jr., attached as Exhibit 1. i The Appellants? appeal involves claims by landowners who brought nuisance claims against Respondent arising out of Respondents? actions in drilling horizontal gas wells into the Marcellus Shale region. There are hundreds of these cases pending in West Virginia Courts. On November 24, 2014, the Chief Justice designated the cases as ?mass litigation? and transferred the cases to the West Virginia Mass Litigation Panel The Appellants were bellwether plaintiffs and the rulings in the appeal may govern all of the hundreds of claims pending before the MLP and those to be ?led thereafter. The claims at issue in this appeal involve signi?cant issues to West Virginia beyond the litigants. On the day he was appointed Justice Jenkins stated: lot of work to be done restoring the trust and con?dence in our state?s highest court. I have pledged very clearly to the West Virginia people to make every decision impartial, follow the rule of law, follow our Constitution. But there is another aspect at this unique point in time that we ?nd ourselves as a state, where our con?dence and our trust in our highest court has been rocked at its very core. So one of my responsibilities and obligations is to, from Day 1, work to restore the public?s con?dence.? 8/0 8/2 5/ governor-i ustice-names?annsteadd enkins-to -the-supreme? m. Recusal by Justice Jenkins in this high pro?le case briefed and argued by the attorney who Successfully defended his right to the appointment two weeks before would be consistent with this pledge and the applicable rules which require avoiding the appearance of impropriety. BASIS FOR DISQUALIFICATION On July 27, 2017, Ancil Ramey, Esq., entered an appearance on behalf of Respondent, Antero Resources, as counsel of record. Exhibit 1, 116. Ancil Ramey is the Managing Partner of the Huntington of?ce of Steptoe Johnson. Id. at 117. The website opensecrets.org reports that the Steptoe Johnson ?rm (including members and the ?rm?s PAC) has contributed almost $82,000 to Evan Jenkins? congressional races beginning with the 2014 cycle. Id. at 118. On May 9, 2018, the Supreme Court of Appeals set this case for a Rule 20 Argument. Rule 20 Arguments are granted for: cases involving issues of ?rst impression; (2) cases involving issues of fundamental public importance; (3) cases involving constitutional questions regarding the validity of a statute, municipal ordinance, or court ruling; and (4) cases involving inconsistencies or con?icts among the decisions of lower tribunals.? Rev. Rules App. Pro. 20; see also id. at Clerk Comment (?The rule plainly signals that cases on the Rule 20 docket are cases that the Court considers to be the most signi?cant cases under review?). On June 25, 2018, the Governor called a special session to consider impeachment of all of the Justices of the Supreme Court of Appeals. Exhibit 1 at 1[10. On July 27, 2018, Justice Menis E. Ketchum resigned from the Supreme Court of Appeals. Id. at 1[l 1. On August 13,2018, the West Virginia House of Delegates voted to impeach the remaining four justices of the Supreme Court of Appeals. The practical effect of this action was to raise public scrutiny of the West Virginia Supreme Court of Appeals, its Justices and judicial ethics to a very high level, both inside and outside West Virginia. Id. at 1112. On August 13, 2018, Justice Robin Davis retired as a Justice. Id. at 1113. On August 9, 2018, Evan Jenkins submitted his application to be appointed to replace Justice Davis until the November, 2018 election. On August 25, 2018, Governor Justice appointed Jenkins to the seat. Id. at 1[14. On August 14, 2018, Jenkins ?led to run in the November, 2018 election to ?ll the balance of the term which runs through 2026September 20, 2018 and September 13, 2018, Wayne King and William Schwartz ?led Petitions for Writs of Prohibition in the Supreme Court of Appeals seeking a determination that Jenkins did not meet the quali?cations for of?ce set forth in the West Virginia Constitution (?Jenkins Writ?). Id. at 1[15. On September 17, 2018, Ancil Ramey and his ?rm appeared as Counsel for Jenkins and ?led Responses to the Jenkins Writ. Id. at 1[l7. Oral Argument on the Jenkins Writ was conducted on September 24, 2018. Thereafter, the Court entered an Order denying the writs. Attorney Ramey appeared as counsel for Evan Jenkins at that Oral Argument. Insofar as is presently known, Attorney Ramey and his ?rm will be involved in any other possible appeals or proceedings relating to the Jenkins Writ matter. The Petitioner in the Jenkins Writ matter has publicly indicated that he is currently conducting research to prepare to draft a Petition for Writ of Certiorari to the Supreme Court of the United States and/ or an action in federal district court. Id. at Justice Jenkins? campaign ?nance report does not disclose a payment by the campaign for Ramey?s services, 739a5644be90.ndf, so it is not known where Ramey provided his services pro [30720 or whether Justice Jenkins still owes legal fees to Ramey?s ?rm. Jenkins resigned from his seat in Congress effective September 30, 2018. He was sworn in as a Justice of the West Virginia Supreme Court of Appeals to serve beginning in the Fall on October 1, 2018. He will be on the ballot in November, 2018. Id. at 1120. Oral argument in the Andrews Appeal is currently set for October 9, 2018, as?the second case of the ?rst day of the Fall, 2018 term of the Court. Id. at 1121. The Jenkins Writ and Ramey?s' representation of Jenkins received statewide media coverage. Similarly, given the impact on West Virginia residents and the natural gas industry, the Andrews Appeal is expected to receive statewide press coverage. Id. at 1121. The undersigned has already been contacted by broadcast and print media regarding the Andrews Appeal. Counsel to the plaintiffs in the Andrews Appeal have discussed with their clients the fact that Evan Jenkins may sit to hear and participate in the decision of their case. They have raised strong objection to their counsel, expressing an opinion that given the proximity of Attorney Ramey and his firm?s successful representation of Evan Jenkins, approximately two weeks before argument of the Andrews Appeal, the possibility of their continued representation of Justice Jenkins at a time that the Andrews Appeal will be argued before the West Virginia Supreme Court of Appeals, and the firm? 5 signi?cant ?nancial support for the various campaigns of Evan Jenkins since 2014, that Evan Jenkins should not participate in the Andrews Appeal as a matter of fairness, due process and maintenance of public respect for the West Virginia Supreme Court of Appeals. Mr. Robert Davis has formed the opinion, to a reasonable degree of professional, legal and ethical certainty, that recusal of Evan Jenkins from participating as a Justice in this appeal is required under Canon 1, Canon 2, Rule 2.3, Rule 2.4 and Rule 2.11 of the West Virginia Code of Judicial Conduct, adopted November 12, 2015, effective December 1, 2015. Id. at 1124. Mr. Davis opined: It is my opinion, more speci?cally, that the prohibition of the appearance of impropriety stated in Canon 1, WVCJ is of particular importance given the overall political and news climate present at this time regarding any activity of the West Virginia Supreme Court of Appeals and all of its members. Cases on judicial conduct overwhelmingly show that maintenance of con?dence of the public in the fairness, objectivity and integrity of the courts, thus in con?dence in the rule of law, is an important public policy critical to our system of government. ?Citizens judge the law by what they see and hear in courts and by the character and manners of judges and lawyers.? In Re Watkins, 233 182, 757 606. The reaction of the plaintiff parties in the Andrews Appeal is indicative of a predictable, reasonable and important reaction of litigants that their case should be heard in a context in which there can be no reasonable suspicion that special favor was given to one side of a case by a Justice of the Supreme Court of Appeals participating in such case. Id. at 1125. Furthermore, Mr. Davis has opined: he public value of open and impartial decisions on cases by West Virginia courts as expressed in Canon 2. A Judge Shall Perform The Duties of Judicial Of?ce Impartially, Competently, And Diligently, WVCJ is of special importance in the analysis of whether Justice Jenkins should be seen by West Virginians acting on a case of great signi?cance when lead counsel for one of the litigants is simultaneously, or nearly so, also Justice Jenkins? personal counsel in a strongly? contested political contest involving his ability to sit on the West Virginia Supreme Court of Appeals. It is my opinion, further, that Justice Jenkins? refusal to recuse when facts show ?nancial support by the Steptoe Johnson ?rm in signi?cant amounts for his personal political campaigns and when a signi?cant member of that ?rm is serving as his personal counsel would raise an unacceptable risk of public suspicion of his improper personal and political bias favorable to the Steptoe Johnson ?rm and Attorney Ramey, resulting in unfairness to the Andrews Appeal plaintiffs. In that regard, Rules 2.3 (A) (performance of udicial duties without bias or prejudice) and A judge shall not permit social, political or other relationships to in?uence judicial judgment) WVCJ suggest that recusal of Justice Jenkins is reasonably required. Finally, Rule 2.11 Disquali?cation, provides that judge shall disqualify himself or herself in any proceeding in which the judge?s impartiality might reasonably be questioned, including by not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party? 3 lawyer. . . Rule 2.11 WVCJ C. Of particular concern to litigants involved in the Andrews Appeal is that Attorney Ramey or a member of his ?rm will appear before Justice Jenkins in opposition to them a mere two weeks after winning a signi?cant victory for Justice Jenkins, a victory that placed him on the Court. The key in analysis of pr0per application of this mandatory recusal Rule is whether impartiality might ?reasonably be questioned?. In my opinion and from my experience from years of practice dealing with attorneys, judges and members of the public, it is reasonable to conclude that in the mind of a member of the public looking at the facts objectively, that the current relationship, political and personal, of Justice Jenkins with the Steptoe Johnson Firm and Attorney Ramey amounts to one in which Justice enkins? impartiality and bias favoring Attorney Ramey and his ?rm can quite reasonably be questioned. In such circumstance, recusal of Justice Jenkins is mandatory under the West Virginia Code of Judicial Conduct. Again, the heightened public scrutiny of actions of the Supreme Court of Appeals at this time in history, demands special care for its integrity and reputation for unbiased action at this time, care which mandates that Justice Jenkins either recuse or that, in the interest of public con?dence in the Court, that his disquali?cation from any participation in the Andrews Appeal be ordered by the West Virginia Supreme Court of Appeal. I ?nd further support for my opinion in orrnal OpiniOn 07-449 of the American Bar Association Committee on Ethics and Professional Responsibility (Aug. 9, 2007). Id. at 26?28. On the day he was appointed Justice Jenkins stated: lot of work to be done restoring the trust and con?dence in our state?s highest court. I have pledged very clearly to the West Virginia people to make every decision impartial, follow the rule of law, follow our Constitution. But there is another aspect at this unique point in time that we ?nd ourselves as a state, where our con?dence and our trust in our highest court has been rocked at its very core. So one of my responsibilities and obligations is to, from Day 1, work to restore the public?s con?dence.? Recusal by Justice Jenkins in a case briefed and argued by the attorney who successfully defended his right to the appointment two weeks before would be consistent with this pledge. Id. at 29. The American Bar Association Committee on Ethics and Professional Responsibility has Opined that pursuant to Model Code of Judicial Conduct Rule 2.1 a judge who is represented by an attorney who is simultaneously representing a client before the judge, ?must disqualify herself from the proceeding over which she is presiding if she maintains a bias or prejudice either in favor of or against her lawyer.? See Formal Opinion 07-449 of the American Bar Association Committee on Ethics and Professional Responsibility (Aug. 9, 2007), attached as Exhibit 2. Judicial Code Rule 2.1 1 (C) provides that a judge subject to possible disquali?cation under Judicial Code Rule may continue to participate in the proceeding only if: the disquali?cation does not involve the judge?s personal bias or prejudice concerning a party or a party?s lawyer. In addition, the judge must disclose on the record the basis of her possible quali?cation Thereafter, the parties and their lawyers must all consider, out of the presence of the judge and court personnel, whether to waive the disquali?cation and must unanimously agree that the judge should not be disquali?ed. Id. at After careful consideration of the importance of the issues involved in this appeal and Justice Jenkins? own statements regarding the importance of trust and con?dence in the Supreme Court and the appearance of impartiality, the Appellants have informed their counsel that they do not desire to waive disquali?cation. Finally, even if Ramey?s representation of Jenkins has concluded, it did so at most two weeks from the argument in this case. The ABA Opinion, while noting that there is no set period for the duration of a disquali?cation based upon a judge?s former attorney?s involvement in a present case, the ABA noted as follows: In the Committee?s opinion, questions as to the appropriateness of a lawyer?s returning to a judge?s court must be decided under the more general consideration underlying Judicial Code Rule 2.1 name- 1y, whether a reasonable person would believe, in light of the time that had elapsed, that the judge?s fairness and impartiality could still be questioned. Exhibit 2 at p. 8. In this case the consequential nature of the case both to Jenkins of Ramey?s representation to Jenkins and to the State in this case strongly favor disquali?cation when there is less than two weeks time between the arguments. Similarly, the publicity surrounding both cases similarly favor disquali?cation. In Caperton v. A. T. Massey Coal, Co., Inc, 556 U.S. 868, 883?84, 129 S. Ct. 2252, 2263, 173 1208 (2009), the United States Supreme Court explained Due Process requires an objective analysis: The dif?culties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise, there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case. The judge?s own inquiry into actual bias, then is not that the law can easily superintend or review, through actual bias, if disclosed, no doubt would be grounds for appropriate relief. In lieu of exclusive reliance on that personal inquiry, or on an appellate review of the judge?s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. See Tumey, 273 U.S. at 532, 47 437; quberry, 400 U.S. at 465-466, 91 499; Lavoie, 475 U.S. at 825, 106 1580. In de?ning these standards the Court has asked whether, ?under a realistic appraisal of tendencies and human weakness,? the interest ?poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. Wirhrow, 421 U.S. at 47, 95 1456. Ultimately, this additional analysis in Caperron resulted in the United States Supreme Court concluding Justice Benjamin was disquali?ed under this objective Due Process analysis, resulting in a reversal of this Court?s decision and a remand for the appeal to be considered again. Just as the United States Supreme Court did not question Justice Benj amin?s subjective ?ndings of impartiality and propriety, Appellants similarly do not question the partiality of Justice Jenkins. However from an objective perspective, Justice Jenkins presiding over a case wherein his attorney is representing the Respondents raises reasonable questions about impartiality and has an appearance of impropriety which requires that Justice Jenkins disqualify himself from this matter. That both the Jenkins writ and this appeal involve public cases of public importance to the State as a whole magnify Appellants? concerns. Caperz?on demonstrates that nagging questions regarding whether or not a Justice should remain on a given case re?ect badly on the judiciary and impact of the perceived validity of the decision rendered. Given the current ongoing impeachment proceedings involving sitting Justices on the Supreme Court the perceived impartiality of the Court is of grave importance. It would be detrimental to the public?s View of the court system if the ?nal decision issued in Appellants? case, a bellwether case involving signi?cant issues of vital importance to the State and its citizens, would be rendered with any question of impartiality and propriety. Appellants respectfully submit that unless Justice Jenkins disquali?es himself from this case, the failure to disqualify would create in reasonable minds a perception that any decision would re?ect adversely on such impartiality. CONCLUSION WHEREFORE, for all of the foregoing reasons, the Appellants request that Justice Jenkins disqualify himself from participating in the upcoming appeal, argument and ?nal decision in this case in accordance with Canon 1, Canon 2, Rule 2.3, Rule 2.4 and Rule 2.11 of the West Virginia Code of Judicial Conduct, adopted November 12, 2015, effective December 1, 2015, and West Virginia Rule of Appellate Procedure 33. DEBORAH G. ANDREWS, RODNEY AND KATHERINE ASHCRAFT, GREGG D. MARY MIKOWSKI, AND ROBERT AND LORETTA SIDERS By Counsel, Anthony J. Maj/(estro (WVSB 5165) POWELL Majestro, PLLC 405 Capitol Street, Suite P1200 Charleston, WV 25301 PhOne: 304-346?2889 Fax: 304-346-2895 amaiesuo?lpowellmaiestro.con1 James C. Peterson (WVSB No. 2880) Aaron L. Harrah (WVSB No. 9937) HILL, PETERSON, CARPER, BEE DEITZLER, PLLC 500 Tracy .Way Charleston, West Virginia 25311 (304) 345?5667 (304) 345-1519 (facsimile) IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA DOCKET NO. 17-0126 (Appeal from Civil Action No. l3-C-434; Circuit Court of Ohio County) ROBERT ANDREWS, et a1., Appellants/Petitioners, V. ANETERO RESOURCES CORR, et 31., Respondents/Appellees. CERTIFICATE OF SERVICE 1, Anthony Maj estro, counsel for Petitioners, hereby certify that I have served a true and exact copy of DEBORAH G. ANDREWS, RODNEY AND KATHERINE ASHCRAFT, GREGG D. MCWILLIAMS MARY MIKOWSKI, AND ROBERT AND LORETTA SIDERS MOTION FOR DISQUALIFICATION DIRECTED TO JUSTICE EVAN Via Electronic Mail and U.S. Mail on this 2nd day of October, 2018 to: Christopher L. Hamb ROBINSON MCELWEE PLLC 400 Fifth Third Center, Fourth Floor Charleston, West Virginia 25301 Attorney for Respondent Hall Drilling, LLC Ancil G. Ramey, Esquire ohnsoncom STEPTOE JOHNSON, PLLC PO. Box 2195 Huntington, WV 2572 Fax: (304) 933?87 Anthony 5165) POWELL Maj estro, PLLC 405 Capitol Street, Suite P1200 Charleston, WV 25301 Phone: 304-346?2889 Fax: 304-346-2895 amaiestro@powellmaiestro.com W. Henry Lawrence STEPTOE JOHNSON PLLC 400 White Oaks Boulevard Bridgeport, West Virginia 263 30 Attorn eys for Respondent Antero Resources Corporation County of Dauphin Commonwealth of EXPERT AFFIDAVIT 0F ROBERT H. DAVISJJR. Personally appeared before the undersigned of?cer, authorized to administer oaths in the Commonwealth of ROBERT H. DAVIS, JR., who, after being sworn, deposes and says as follows: 1. I am Robert H. Davis, Jr., an active member in good standing of the West Virginia State Bar. I have been asked by Petitioners? counsel to provide my expert opinion on a question of judicial disquali?cation in the case Andrews v. Antero Resources, No. 17?0126 (?Andrews Appeal?) which is currently pending in the Supreme Court of Appeals of West Virginia. Speci?cally, I have been asked if newly-seated Justice Evan Jenkins ought to recuse himself, or be disquali?ed, from sitting to hear and deciding the Andrews Appeal, due to be argued in about one week?s time. 2. My quali?cations to provide expert opinions regarding judicial ethics include my 46 years of practice of law with a consistent focus on legal ethics, judicial and governmental ethics and, generally, the law of lawyering. I have quali?ed to provide expert opinions and testimony in judicial discipline and challenge cases in West Virginia and Ohio in my private practice since 1992. I have familiarity with the ethics guidance regarding attorneys and judicial of?cials in West Virginia having served as Bar Counsel to the West Virginia State Bar from 1980-1986 and having advised magistrate judges, judges and attorneys on matters of ethics and conduct since beginning my private practice of law here is Harrisburg, PA in 1992. I also have served as an adjunct professor at the Widener Commonwealth School of Law here is Harrisburg since 1992, teaching legal ethics and an intensive seminar in special problems of legal ethics. I have provided my Curriculum Vitae further demonstrating my quali?cations as an expert which are attached. 3. I am informed, andI assume for the purposes of this expression of my opinion, that the Andrews Appeal involves claims by landowners who brought nuisance claims against defendants arising out of defendants? actions in drilling horizontal gas wells into the Marcellus Shale region. There are hundreds of these cases pending in West Virginia Courts. On November 24, 2014, the Chief Justice designated the cases as ?mass litigation? and transferred the cases to the West Virginia Mass Litigation Panel 4. The Petitioners in the Andrews Appeal were bellwether plaintiffs and the rulings in the appeal may; govern all of the hundreds of claims pending before the MLP and those to be filed thereafter. 5-. The claims at issue in the Andrews Appeal involve significant issues to West Virginia beyond the litigants. Amici in the Andrews Appeal allege that ?adoption of the legal theOries espoused by [the Andrews] Petitioners will effectively eliminate future oil and gas development in West Virginia and that the issues in the Andrews Appeal ?necessarily implicate West Virginia's economic viability overall.? 6. - On July 27, 2017, Ancil Ramey, Esq., entered appearance on behalf of Respondent Antero Resources as counsel of record. 7. Ancil Ramey is the Managing Partner of the Huntington of?ce of Steptoe Johnson. I have known Attorney Ramey since coming to West Virginia in 1980 and I have the greatest personal respect for him and his ethics and no part of this af?davit should be taken as a criticism of the personal ethics of Attorney Rainey. 8. The website opensecretsorg reports that the Steptoe Johnson ?rm (including members and the tirm?s PAC) has contributed almost $82,000 to Evan enkins? congressional races beginning with the 2014 cycle. 9. On May 9, 2018, the Supreme Court of Appeals set the Andrews Appeal for a Rule 20 Argument. Rule 20 Arguments are granted for: cases involving issues of ?rst impression; (2) cases involving issues of fundamental public importance; (3) cases involving constitutional questions regarding the validity of a statute, municipal ordinance, or court ruling; and (4) cases involving inconsistencies or con?icts among the decisions of lower tribunals.? Rev. Rules App. Pro. 20; see also id. at Clerk Comment (?The rule plainly signals that cases on the Rule 20 docket are cases that the Court considers to be the most signi?cant cases under review.? . 10. On June 25, 2018, the Governor called a special session to consider impeachment of all of the Justices of the Supreme Court of Appeals. 11. On July 27, 2018, Justice Menis E. Ketchurn resigned from the Supreme Court of Appeals. 12. On August 13,2018, the West Virginia House of Delegates voted to impeach the remaining four justices of the Supreme Court of Appeals. The practical effect of this action was to raise public scrutiny of the West Virginia Supreme Court of Appeals, its Justices and judicial ethics to a very high level, both inside and outside West Virginia. 13. On August 13, 2018, Justice Robin Davis retired as a Justice. 14. on August 9, 2018, Evan Jenkins submitted his application to be appointed to replace Justice Davis until the November, 2018 election. On August 25, 2018, Governor Justice appointed Jenkins to the seat. 15. On August 14, 2018, Jenkins ?led to run in the November, 2018 election to ?ll the balance of the term which runs through 2026. 16. On September 20, 2018 and September 13, 2018, Wayne King and William Schwartz ?led Petitions for Writs of Prohibition in the Supreme Court of Appeals seeking a determination that Jenkins did not meet the quali?cations for of?ce set forth in the West Virginia Constitution (?Jenkins Writ?). 17. On September 17, 2018, Attorney Ancil Ramey and his ?rm appeared as Counsel for Jenkins and ?led Responses to the Petitions. 18. On September 20, 2018, the Supreme Court entered an Order directing Jenkins . and the other respondents, ?to show cause, if any they can, why a writ of mandamus should not be awarded against Mac Warner, in his of?cial capacity as West Virginia Secretary of State, as prayed for by the petitioner in the said petition.? The Court also ordered that the Jenkins Writ be scheduled for consideration and oral argument under Rule 20 of the Rules of Appellate Procedure on Monday, September 24, 2018.? 19. Oral Argument on the Jenkins Writ was conducted on September 24, 2018. Thereafter, the Court entered an Order that same day denying the writs. Attorney Ramey appeared as counsel for Evan Jenkins at that Oral Argument. Insofar as is presently known, Attorney Ramey and his ?rm will be involved in any other possible appeals or proceedings relating to the Jenkins Writ matter; however the Petitioner in the Jenkins writ matter has publicly indicated that he is currently conducting researching to prepare to draft a Petition for Writ of Certiorari to the Supreme Court of the United States and/or an action in federal district court. 20. Jenkins resigned from his seat in Congress effective September 30, 2018. He was sworn in as a Justice of the West Virginia Supreme Court of Appeals to serve beginning in the Fall on October 1, 2018. He will be on the ballot in November, 2018. 21. Oral argument in the Andrews Appeal is currently set for October 9, 2018, as the second case of the ?rst day of the Fall, 2018 term of the Court. 22. The Jenkins Writ and Ramey?s representation of Jenkins received statewide media coverage. Similarly, given the impact on West Virginia residents and the natural gas industry, the Andrews Appeal is expected to receive statewide press coverage. 23. Counsel to the plaintiffs in the Andrews Appeal have discussed with their clients the fact that Evan Jenkins may sit to hear and participate in the decision of their case. They have raised strong objection to their counsel, expressing an opinion that given the proximity of Attomey Ramey and his ?rm?s successful representation of Evan Jenkins, approximately two Weeks before argument of the Andrews Appeal, the possibility of their continued representation of Justice Jenkins at a time that the Andrews Appeal will be argued before the West Virginia Supreme Court of Appeals, and the firm?s significant ?nancial support for the various campaigns of Evan Jenkins since 2014, that Evan enkins- should not participate in the Andrews Appeal as a matter of fairness, due process and maintenance of public respect for the West Virginia Supreme Court of Appeals. 24. I have formed an opinion, to a reasonable degree of professional, legal and ethical certainty that recusal or disquali?cation of Evan Jenkins to hear and vote on the upcoming Andrews Appeal while a Justice on the West Virginia Supreme Court of Appeals is required under Canon 1, Canon 2, Rule 2.3, Rule 2.4 and Rule 2.11 of the West Virginia Code of Judicial Conduct, adopted November 12, 2015, effective December 1, 2015. . 25. It is my opinion, more speci?cally, that the prohibition of the appearance of impropriety stated in Canon I, WVCJ is of particular importance given the overall political and news climate present at this time regarding any activity of the West Virginia Supreme Court of Appeals and all of its members. Cases on judicial conduct overwhelmingly show that maintenance of con?dence of the public in the fairness, objectivity and integrity of the courts, thus in con?dence in the rule of law, is an important public policy critical to our system of government. ?Citizens judge the law by what they see and hear in courts and by the character and manners of judges and lawyers.? In Re Watkins, 233 182, 757 606. The reaction of the plaintiff parties in the Andrews Appeal is indicative of a predictable, reasonable and important reaction of litigants that their case should be heard in a context in which there can be no reasonable suspicion that special favor was given to one side of a case by a Justice of the Supreme Court of Appeals participating in'such case. 26. Similarly, it is my opinion that the public value of open and impartial decisions on cases by West Virginia courts as expressed in Canon 2. A Judge Shall Perform The Duties of Judicial Of?ce Impartially, Competently, And Diligently, WVCJ is of special importance in the analysis of whether Justice Jenkins should be Seen by West Virginians acting on a case of great signi?cance when lead counsel for one of the litigants is simultaneously, or nearly so, also Justice personal counsel in a strongly?contested political contest involving his ability to sit on the West Virginia Supreme Court of Appeals. 27. It is my opinion, further, that Justice enkins? refusal to recuse when facts show I ?nancial support by the Steptoe Johnson ?rm in signi?cant amounts for his personal political - campaigns and when a signi?cant member of that ?rm is serving as his personal counsel would raise an unacceptable risk of public suspicion of his improper personal and political bias favorable to the Steptoe Johnson ?rm and Attorney Ramey, resulting in unfairness to the Andrews Appeal plaintiffs. In that regard, Rules (performance of judicial duties without bias or prejudice) and A judge shall not permit social, political or other relationships to in?uence judicial judgment) WVCJ suggest that recusal of Justice Jenkins is reasonably required. 28. Finally, Rule 2.11 Disquali?cation, provides that judge shall disqualify himself or herself in any proceeding in which the judge?s impartiality might reasonably be questioned, including by not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party? 5 lawyer. . Rule 2.11 Of particular concern to litigants involved in the Andrews Appeal is that Attorney Ramey or a member of his ?rm will appear before Justice Jenkins in opposition to them a mere two weeks after winning a signi?cant victory for Justice Jenkins, a victory that placed him on the Court. The key in analysis of proper application of this mandatory recusal Rule is whether impartiality might ?reasonably be questioned?. In my opinion and from my experience from years of practice dealing with attorneys, judges and members of the public, itis reasonable to conclude that in the mind of a member of the public looking at the facts objectively, that the current relationship, political and personal, of Justice Jenkins with the Steptoe Johnson Firm and Attorney Ramey amounts to one in which Justice enkins? impartiality and bias favoring Attorney Rarney and his ?rm can quite reasonably be questioned. In such circumstance, recusal of Justice Jenkins is mandatory under the West Virginia Code of Judicial Conduct. Again, the heightened public scrutiny of actions of the Supreme Court of Appeals at this time in history, demands special care for its integrity and reputation for unbiased action at this time, care which mandates that Justice Jenkins either recuse or that, in the interest of public con?dence in the Court, that his disquali?cation from any participation in the Andrews Appeal be ordered by the West Virginia Supreme Court of Appeal. I ?nd further support for my opinion in Formal Opinion 07-449 of the American Bar Association Committee on Ethics and Professional Responsibility (Aug. 9, 2007). 29. On the day he was appointed Justice Jenkins stated: lot of work to be done restoring the trust and con?dence in our state?s highest court. I have pledged very clearly to the West Virginia people to make every decision impartial, follow the rule of law, follow our Constitution. But there is another aSpect at this unique point in time that we ?nd ourselves as a state, where our con?dence and our trust in our highest court has been rocked at its very core. So one of my responsibilities and obligations is to, from Day 1, work to restore the public ?s con?dence.? Recusal by Justice Jenkins in a case briefed and argued by the attorney who successfully defended his right to the appointment two weeks before would be consistent with this pledge. 30. As noted, the opinions expressed here are all stated to a reasonable degree of legal, ethical and professional certainty. 31. Further af?ant saith naught. Slgned the 1st day ofOctober 2013. ?RobertHl? avis, Jr. ,Esq Harrisburg, PA Sworn to and subscribed before me, a Notary Public, . COMMONWEALTH OF 0.. NOTARIAL SEAL - . Lisa R. Barker Notary Public the day Of October, 2018. City of Harrisburg. Dauphin County My Commission Expires Nov. 5. 2020 ROBERT H. DAVIS, JR. Attorney Counseior at Law 121 Pine Street, First Floor Harrisburg, Pa. 17101?1209 Member: Pa. W. Va. and Georgia (inactive) Bars (717) 238-6861 I (800) 401 -6861 E-Mail: ethiclaw45@gmail.com CURRICULUM VITAE OF ROBERT H. DAVIS, JR. Present Employment: Solo Practice of Law 121 Pine Street, First Floor Harrisburg, Pa. 17101 1209 Education: Vanderbilt University B.A. 1967 University of Georgia Law School - .D. 1972 three-year Vasser Wooley Scholar and President of Athens Legal Aid and Defender Clinic. Work and Professional Experience: Peace Corps - Secondary School Teacher, Government Secondary School, imi, Bagbo Chiefdom, Southern District, Sierra Leone, West Africa, 1967?1969. Augusta Of?ce, Georgia Indigents Legal Services Summer, 1971 and February and June 1972. (A Founder) . Associate of D. Landmm Harrison - Augusta, Georgia, June 1972-January 1973, General practice of law. State Bar of Georgi_a - Assistant General Counsel, February 1973 to January 1980. I was the ?rst person to serve full?time as Assistant to the General Counsel of the State Bar of Georgia. In addition to playing a signi?cant role in modernizing Georgia ethics rules at the invitation of the Georgia Supreme Court, I had responsibility for case preparation and UPL and ethics prose? cution for the entire state of Georgia. I tried (and won) the first modern? day ethics jury trial in Georgia and tried the ?rst ethics hearing open to the public in Georgia. I also made numerous presentations on ethics and practice management to the bar during the period of my service. The West Virginia State Bar Bar Counsel, 1980 to September 1986. In April 1983 the West Virginia State Bar presented me the Award of Merit, its highest award, for my service as their counsel, for my work na- tionally, including presidency of the NOBC and work with the Conference of Chief Justices and work with the ABA Young Lawyers Division and in West Virginia to urge bar involvement in substance abuse interventions. I advised and represented the Bar of West Virginia as General Counsel, in- cluding ethics and UPL prosecutions and in other litigation. I also handled -1- insurance, employment and contract problems which arose. I was princi? pal draftsman of revised and updated disciplinary rules for West Virginia lawyers and was appointed by Chief Justice Thomas Miller to review and recommend improvements in West Virginia?s judicial discipline system. My recommendations for change resulted in significant improvement of the procedures, staff support and credibility of the judicial ethics effort in West Virginia. I wrote and spoke frequently on legal ethics and practice management issues while I served as Bar Counsel. Disciplinary Board of the Supreme Court of Deputy Chief Counsel September 1986 to August 28, 1992. Acting Chief Counsel November 1990 to February, 1992. I supervised, alone and cooperatively with Chief Counsel, a staff of twenty? two lawyers, ten investigators and supporting clerical workers. The Board maintained four district offices, with the Harrisburg of?ce as the adminis? trative center for the system. Major case and litigation supervision (includ? ing critique of strategy and of draft pleadings), budgeting, employee super? vision and evaluation, personal litigation involvement and rules drafting are some of the duties listed in the job descriptions for Chief Counsel and Deputy Counsel. At the same time I continued my efforts to improve vari- ous areas of law practice in by active participation on Com? mittees of the Bar Association. Solo Practice of Law, Harrisburg, PA. November, 1992 to present. Since leaving the Disciplinary Board of the Supreme Court I have engaged in solo practice of law from of?ces located in Harrisburg, Pa. The practice I engage in is quite varied but increasingly the primary focus is upon ad? vising lawyer, judicial and governmental respondents in and West Virginia as to defense of ethics charges, provision of ethics advisory opinions to lawyers, government of?cials and businesses in both jurisdic- tions and the teaching of ethics to members of the bar and to law students. The practice began as a general practice including minor criminal matters, basic wills, simple real estate transactions, representation of nonpro?t corporations, disputes over lost dogs and contract dispute representation as well as service as an expert witness in matters relating to legal malprac- tice or questions of ethics and disquali?cation in Common Pleas and federal district courts as well as state courts in New York, Ohio, Texas and West Virginia. I have served a two-year term as a member of an arbitration panel for the Dauphin County Court of Common Pleas. By 1997 my practice began to focus almost exclusively on consultation with clients on ethics malpractice avoidance questions, defense of lawyer and judicial and governmental ethics charges and occasional service as an ex? pert witness. -2- Bar Memberships The State Bar of Georgia, 1972 (inactive since 1981); The West Virginia State Bar, since 1980; Bar since 1986, Pa. Bar Asso- ciation (Professionalism Committee Subcommittee Chair; Professional Li- ability Committee Co?Chair, 2007; Lecturer, Malpractice Avoidance Effort of the Professional Liability Committee; Recipient of two PBA Special Achievement Awards, May 1992, and April 2002, for writing PBA Re~ spouse Plan for Mass Disasters and work on the PBA Client and Commu- nity Relations Committee; Chair (2000?2003) and Vice-Chair (1998? 2000) of the Client and Community Relations Committee; James Bowman American. Inn of Court (elected Master, 2001; Treasurer 2006 -2010); Na? tional Organization of Bar Counsel (Pres. '83? Chaired NOBC Committees to evaluate National Discipline Data Bank, 1991 and was the reporter for the NOBC critique of the A. B. A. Kutak Committee Report, 1982; directed annual nationwide salary survey for disciplinary agencies, Association of Professional Responsibility Lawyers American Bar Association ellow, American Bar Foundation, 2009]. Teaching Positions: - Adjunct Professor of Law, Widener University School of Law-Harrisburg Campus, teaching Professional Responsibility and an Advanced Ethics Problems Seminar [Fall of 1992 present]; Re- cipient of the Widener Law School?s Adjunct Faculty Distinguished Ser? vice Award, 2/ 2004; course moderator/presenter in mandatory Continu- ing Legal Education courses in ethics presented statewide by the Penn- sylvania Bar Institute and the Bar Association (well over 125 at last count), West Virginia Continuing Legal Education, as well as for the Bowman Inn, American Inns of Court, Philadelphia Bar Education Foundation, the American Bar Association?s Business Law Section, Penn- sylvania Defense Institute, Criminal Defense Lawyer?s As- sOciation, the Trial Lawyers' Association, the New Jersey Bar Institute, American Conference Institute, of New York, NY, the mandatory Bridge?the- -Gap sessions established by the Supreme Court (as both author of materials and presenter) and Widener Law School CLE. In many of the teaching assignments relating to continuing legal educa- tion, I prepared, co-authored or revised the teaching materials used in the sessions I taught. Publications of which I am the Principal Author or Editor and Contributor During my twenty-one years of service as a bar counsel or ethics counsel to three states and as an ethics prosecutor, I did not write more than one or two articles which were pub- lished and none were published in the last ten years of that service. However, since entry into private practice one of the focuses of my practice has been practical education of law- yers on ethics and malpractice' Issues. In that capacity, I have written materials most of which were created for a number of Continuing Legal Education providers, a repre- sentative list of which writings follows: Materials - Views From the Arena Some Practical Lessons and Rules on Con?icts - Course materials presented in New York, NY in March of 2001 and San Francisco, -3- CA in June of 2001 for the American Conference Institute ethics portion of the pro- gram: ?Patenting: Genomics and Proteomics.? Materials - Attorney Advertising Ethics Presentation to the annual meeting of the Association of Trial Lawyers, Hershey, PA. July 6, 2001 and Auto Law Seminars of in December of 2001 in Harrisburg and Allentown, PA. and, in upgraded form, to accompany an hour?long video presentation for recorded in the summer of 2004 for statewide use. Con?icts of Interest in the Non?Litigation Context: article: ?Some Practical Lessons from the Real World? Panel Presentation American Bar Association Section of Business Law Midyear Meeting, Philadelphia, Pa., March 24, 2001. Materials - Fiduciary Requirements for Lawyers 1n Handling Pr0_p_- erty of Clients and Others, these course materials were prepared 1n the summer of 2000 with Samuel Miller, Esq. and Edwin W. Frownfelter, Esq. for use in 2001 in the Supreme Court mandatory ?Bridge the Gap? seminar for candidates for the Bar. Article, ?Supreme Court Announces New Disciplinary Enforcement Rule? vania Bar News, MarCh 19, 2001, p. 9. Alerting bar to new Pa. D. E. Rule 2170') re- strictions on law-related work by suspended and disbarred counsel. Article, Trust Accounts- Handle With Care, September, 1994 issue of The Penn- jlvania Lawyer Magazine. page 40. This article has also been published 1n West Virginia and in the CPA Association statewide magazine as well, I un- derstand. Article - ?Using Lawyer?Experts 1n Financial Litigation (Part Vol.14, No.3, The Practical Litigator, ALI May, 2003. Article - ?Using Lawyer?Experts in Financial Litigation (Part Vol 14, No. 4, The Practical Litigator, July, 2003. Article - ?Notary Best Practice? Vol. XXI, Issue 3, Facts 8: Findings. The Journal for Legal Assistants, November, 20 04. Book- The Hornbook on Developing Maintaining Positive Client Relationships - I was a principal editor of, and Contributor to, the first edition of this highly suc? cessful PBA publication, ?rst printed and released In early 1998, which provides guidance to bar members on building and maintaining positive client relationships. Pamphlet? Chair of drafting group, with Samuel Miller, Esq. and Edwin R. Frown- felter, Esq, of the pamphlet Fiduciary Requirements for Lawyers in 1997, published and widely distributed to members of the Bar by Interest on Lawyer Trust Accounts Board and the Bar Association. This pamphlet was revised and expanded 1n 2000 by the same drafting group for the Supreme Court?s ?Bridge the Gap? seminars for new lawyers, starting in 2001, mentioned above. -4- - Article, "All DUI's Look Uglier at Quittin' Time", Vol. 10, No. 2, 1998, PACDL Fo- rum, the magazine of the Criminal Defense Lawyers' organization, de- scribing the impact of a DUI conviction on a lawyer's law license. ?Materials - Trust Accounting Basics, course materials for August 11, 1993 Widener University Law School CLE program in Philadelphia, Pa. This same program has also been presented, in updated version, to lunch and learn programs of the Dauphin County Bar Association, Harrisburg, Pa. It was since taught on a number of occasions and revised, under the auspices of the Bar Institute and some sponsoring local bar associations. In the summer of 1996 an expanded version of this presen- tation was created for the New Jersey Continuing Legal Education Institute and was utilized at two programs presented in New Jersey for lawyers jointly licensed in New Jersey and ?Materials Avoiding Neglect Problems Identifying Dangerous Files - This program and related materials developed by me has been given in various forms under the aus- pices of the Defense Institute, (initially at Rosemont College, 12/5/1992), Philadelphia Bar Institute, Bar Institute, (various loca- tions), West Virginia Bar CLE, (2/27/1993, Canaan Valley Resort, WV) Widener University Law School CLE (8/11/1993), James F. Bowman American Inn of Court (April, 2001, Harrisburg, PA) and the Dauphin County Bar Association. This pres~ entation has been given many times around the state of as a part of the malpractice avoidance effort of the Bar's Attorney Liability Insur~ ance Committee malpractice avoidance programs to law firms in-house and as a stand?alone program for local bar associations. Materials - A Lawyer's Duty to His Client vs. His Duty of Candor to the Court - First developed for presentation March 25, 1993 at a Widener University Law School CLE program in Hershey, Pa., this presentation has been given under those auspices and numerous other times under the auspices of the Bar Institute and sponsoring local bar groups to various bar groups, including the Bar Association Midyear Meeting, Williamsburg, Va., 1/ 10/ 1994 and the Dauphin County Bar. Materials Ethics Dangers of Scorched Earth Litigation Tactics: Use of Misrepre? sentation and Capitalizing on Mistakes of Opponents - for the February 2, 1995 meeting of the National Association of Railroad Trial Counsel, Naples, Fla. Re? peated as PBI course, Philadelphia, May 10, 1995, and on other occasions after revi- s10n. Materials - The New Rules of Lawyer Advertising For the Bar Insti- tute program for new lawyers, August, 1994, at Bucknell University, Dauphin County Bar Association (1 10 1995) and repeated for the Trial Law? yers annual meeting, July 6, 1995 and at Bucknell, August 3, 1995 and West Con? shohocken, Pa. November 10, 1995. The program was updated and presented under the sponsorship of the Bar Institute, most recently in the fall of 1999 in Mechanicsburg, and was given in early Fall of 1998 for the Bench-Bar retreat of the Berks County Bar Association. These course materials, in updated form, were -5- also selected as part of the first mandatory ?Bridge the Gap? orientation to be given to candidates for admission to the bar in the summer of 2001 and are the basis of a presentations made to the Trial Lawyers Association Meetings in July of 2001 and December of 2002. ?Ethics Jeopardy? Materials and video vignette scripts - Written and produced about 2005, based upon an earlier set of vignettes produced and presented a num? ber of times, including statewide in PA via satellite, the second series of five ?ethics jeopardy? vignettes has been presented in numerous venues, including, most re- cently, twice in WVU CLE Mountaineer Series presentations in 2008 and 2009, as well as a PBI presentation on ethics in Atlantic City, NJ, various bar association an- nual meetings and at the initial PBI series of presentations. Materials A Primer on Retainers Non?Refundable and Otherwise - Annual Meet? ing of Trial Lawyers' Association, Hershey, Pa., July, 1994, Dauphin County Bar (12/9/1994). Materials Law Firm Responsibility: Supervisor?Subordinate Relations and Duties - Oct. 2, 1992, Hershey, for Widener Law School CLE effort. Materials - Corporate Counsel Ethics PBA Midyear Meeting, Baltimore Md., 1993. Materials - Ethics of Client Communication and Counseling - PBI program, Harris- burg, Pa, December 1994. Materials - Ethics of Bond Counsel Representation PBI program, June, 1993, Hbg, Pa., repeated summer of 1999, Philadelphia, PA. Materials - Playing a_Dangerous Game: Misrepresentation, Mistakes of Opponents, SpoliatiOn and Discovery Abuse in Litigation - For August 21, 22, 1995, PBI Program on Crashworthiness, Rollovers, What is Wrong With Automobiles Seminars in Pittsburgh and Philadelphia, Pa. Materials Ethics in Civil Practice 2000 (January, 2000) Ethics in Civil Practice 2001 (January 2001), Ethics in Civil Practice 2002 (J anuary 2002), Ethics in Civil Practice 2003 (March 2003), Ethics in Civil Practice 2004 (March 2004) Ethics in Civil Practice 2005 (March, 2005) Ethics In Civil Practice 2006( March, 2006) Ethics in Civil Practice 2007 (March 2007)Ethics in Civil Practice 2008 (Febru ary/March 2008) Ethics in Civil Practice 2009 (February/ March 20 09) an ethics presentation during the annual program of the Bar Institute on cur rent develOpments in civil practice in which I focus on the area of ethics and the law of lawyering presented as a part of the Civil Practice 2000/2001/2002/2003/ 2004/ 2005/ 2006/ 2007/2008/2009/2010/2011 and 2012 programs presented by the FBI in Marco Island, Pittsburgh, Philadelphia, Harris burg and telecast statewide annually for lawyers by satellite network. Materials - Ethics Issues in Tax Practice Presented to the Pa. Bar Associa? tion Tax Institute Program in Philadelphia, PA on November 18, 1999. Materials - ?Update on the Law of Ethics, 2001" accompanying lecture presented in Morgantown, WV on November 3, 2001, which program was presented by West Virginia Continuing Legal Education as a part of the Mountaineer CLE Se~ ries. Materials - ?The 360 Degree Duty of Lawyers in Litigation: Loyalty to the Client vs. Candor to the Court and Fairness to the Opposition? WVCLE Litigation Program of February .9, 2002, Canaan Valley Lodge, Davis, WV. Materials - ?Ethics For Criminal Defense Lawyers? Joint Annual Meeting of the PACDL and PDA of PA, Camp Hill, PA, April 19, 2002. Materials - ?Ethical Issues Relating to Municipal Finance Practice - Fees, Employment and Con?icts Issues? Program presented at the annual seminar of the Pa.- Association of Bond Lawyers, Harrisburg, PA, May 23, 2000. Materials - ?Using the LaWyer-Expert in Financial Litigation? Program presented at the Annual Meeting of the Business Law Section of the American Bar Association, Washington, DC, August 11, 2002. Materials ?Ethics Concerns in the Practice of Employment Law? WVCLE Mountaineer CLE Series, Morgantown, WV, August 31, 2002. Materials - ?Ethics: Attorney Fees: Professional, Practical and Ethical Considerations? - WVCLE Mountaineer Series, Morgantown, WV August 31, 2002. Materials ?Ethics: Building a Bullet-Proof Ethics Screen In a Rule?Hostile Environment? WVCLE Mountaineer CLE Series, Morgantown, WV, October 22, 2003. Materials ?Ethics: Do Your Clients Go Out the Window When Your Associates Go Out the Door?? - WVCLE Mountaineer CLE Series, Morgantown, WV, October 22, 2003. Materials ?Survey of Ethics and Law of Lawyering? WVCLE Mountaineer CLE Series, Morgantown, WV, October 21, 2004. Materials ?Ethics in Representing Small Businesses? WVCLE Mountaineer CLE Series, Morgantovm, WV, November 12, 2004. Materials - ?There Ought to Be a Rule - Wait, Maybe There Is? - WVCLE Mountaineer CLE Series, Morgantown, WV, November 2, 2005. Materials ?Ethics Update Riding into the Sunset With Dignity; Current Devel? opments" -WVCLE Mountaineer Series, Morgantown, WV, November 8, 2007. Materials - ?Ethics Update? - WVCLE Series, Shepherdstown, WV, June 13, 2008. -7- Materials ?Ethics Update? and ?Ethics Showdown? presentations WCLE Mountaineer Series, Morgantown, WV, October 23, 2008. Materials ?Ethics Update? and ?Ethics Challenge? WVCLE Mountaineer Series, Morgantown, WV, October, 2009 and 2010. Materials - ?Malpractice and Ethics Complaint Avoidance? with Lonnie Sim? mons, Esq. - WVCLE, Morgantown, WV, Sept. 1, 2012 Materials - ?Ethics and the Paralegal? Ethics credit presentation October 13, 2012, Keystone Alliance of Paralegal Associations Annual Meeting, Lancaster, PA Materials ?Fee Practices, Pointers and Traps? with Dana Pirone Carosella, Esq. and Barbara Rosenberg, Esq, PBI Webinar, December 6, 2012. Materials -?Ethics Potpourri - What to Do When You Receive that Letter? - With Dana Pirone Carosella, Esq. Pa Bar Institute, programs in Philadelphia and Mechanicsburg, PA 2011; presented again on ?ve occasions in 2012 as part of Ethics Potpourri Series. Materials ?Defending an Ethics Complaint? Lecture at PBA Real Property, Probate and Trust Retreat, May 14, 2014. Statement ?led with the State Senate Testimony as an expert at November 12, 2014 Senate hearing into the consequences of the loss of license of Attorney General Kane, particularly the provisions of Rule 217, Pa.Rules of Discipli- nary Enforcement. Materials ?Lights, Cameras, Action Ethics Quandries Facing Family Lawyers? PBI to Family Law Section Winter Meeting, Lancaster, PA, January 16, 2016, also presented in Philadelphia, PA. April 19, 2016. Materials ?Professionalism? Lecture, Dauphin County Bar Association, Harris- burg, PA June 21, 2016. Materials With Erik Anderson, Esq. ?Criminal Charges and Convictions and Attorney Licensing and Discipline? Lecture on Marijuana Update - Dauphin County Bar Association November 16, 2016. Materials with Christine Brann, Esq. -Medical Marijuana Update, Lecture, Dauphin County Bar Association, Harrisburg, PA January 10, 2017 Materials ?Can?t We All Just Get Along?? Lecture to Central Pa Collaborative Law Group, Camp Hill, Pa. November 21, 2017. Materials ?Ethics in the Deadly Encounter? with Atty. William Costopoulos - Dauphin County Bar Association CLE Seminar, May 22, 2018. Hot Tips Article - ?Be Careful Using the Term ?Retainer? PBA News, July, 2018. -3- - Materials ?Ten or So ?Ugly Lawyer Tricks? To Avoid? - Lecture to the Monroe County Bench Bar Meeting, September 28, 2018. There are numerous other course materials which I authored or to which I contributed at times, or materials which I updated or simply reused without alteration for many speaking engage- ments without creating new materials before this list was last updated and which I have simply forgotten and have not thus listed, but this list' IS representative. I present somewhere between five to ten ethics/malpractice avoidance CLE lectures 1n a typical year for the FBI and Dauphin County Bar alone. Rev. 9 2018 AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY Formal Opinion 07-449 August 9, 2007 Lawyer Concurrently Representing Judge and Litigant Before the Judge in Unrelated Matters A lawyer who is asked to represent a client before a judge and is simul- taneously representing that judge in an unrelated matter may, under Model Rule undertake the representation only if he reasonably believes that he will be able to provide competent and diligent represen- tation to both the litigant and the judge and they give their informed consent, con?rmed in writing. Pursuant to Model Code of Judicial Conduct Rule 2.1104), the judge in such a situation must disquali?z herself from the proceeding over which she is presiding if she maintains a bias or prejudice either in favor of or against her lawyer. Ihis'disqualification obligation also applies when it is another lawyer in her lawyer ?s ?rm who is representing a litigant before her. However, absent such a bias or prejudice for or against her lawyer, under Judicial Code Rule 2.1 l( C), the judge may continue to participate in the proceeding if the judge discloses on the record that she is being represented in the other matter by one of the lawyers, and the parties and their lawyers all consider such disclosure, out of the presence of the judge and court personnel, and unanimously agree to waive the judge is disquali?cation. - If a judge is obligated to make disclosures in compliance with Judicial Code Rule 2. C), refuses to do so, and insists upon presiding over the matter in question, the lawyer?s obligation of con?dentiality under Model Rule 1.6 ordinarily would prohibit his disclosing to his other client his representation of the judge without the judge ?s consent, ren? dering it impossible to obtain the client?s consent to the dual representa? tion, as required by Model Rule The lawyer ?5 continued repre- sentation of the judge in such a circumstance constitutes an a?innative act e?ectively assisting the judge in her violation of the Judicial Code, and thereby violates Model Rule 8.409. The lower (or another lawyer in the lawyer?s firm), in that circumstance, is obligated to withdraw ??om the representation of the judge under Model Rule 1.16. The duty of con?dentiality that the lawyer owes to the judge as a client prohibits his disclosing the judge ?s violation of the Judicial Code to the AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILI- TY. 321 N. Clark Street. Chicago, Illinois 60610-4714 Telephone (312)9886300 CHAIR: Steven C. Krane. New York, NY Cl Elizabeth Alston, LA CIT. Max?eld Bahner. Chattanooga. TN El Arnie L. Clifford, Columbia. SC El Edwin L. Felter. Jr., Denver. CO James Akio Kawachika. Honolulu, HI El Robert H. Mundheim. New York, NY Cl Arden J. Olson, Eugene. OR El lrrna Russell. Tulsa. OK El Sylvia E. Stevens. Lake Oswego. OR El CENTER FOR PROFESSIONAL RESPONSIBILITY: George A. Kuhlman. Ethics Counsel: Eileen B. Libby, Associate Ethics Counsel 2007 by the American Bar Association. All rights reserved. 07-449 Formal Opinion 2 appropriate disciplinary agency, as would otherwise be required under Model Rule 8.3.1 In this opinion, we address the obligations of a judge, and a lawyer repre? senting that judge, when the lawyer (or another lawyer in his law simultaneously represents another client in a proceeding before that judge. As a threshold matter, the Committee notes that when a lawyer considers simultaneously representing a judge in a proceeding and another client whose matter is being presided over by that judge, the lawyer must treat the judge as he would treat any other client. Thus, he must determine, under Rule if there is a ?signi?cant risk? that the representation of either client will be materially limited by his responsibilities to the other client. If so, the lawyer may proceed with the representation under Rule 1.7(b) only if the lawyer reasonably believes that he will be able to provide competent and dili- gent representation to each affected client, and each affected client gives informed consent, con?rmed in writing. We begin our analysis with a consideration of a judge?s obligations under Model Code of Judicial Conduct Rule 2.11, which addresses judicial disquali? fication, although the judge?s compliance or noncompliance with the various provisions of Judicial Code Rule 2.11 inevitably creates certain ethical oblig- ations for her lawyer as well.3 Judicial Code Rule 2.11 gives rise to three possible scenarios. In the ?rst, the judge has a bias or prejudice in favor of, or against, the lawyer who is rep? resenting her. In the second, the judge does not have such a bias or prejudice, but recognizes that a reasonable person might suspect such bias or prejudice, and submits the matter for consideration by the parties to the litigation in which her lawyer is appearing. In the third, the judge makes no disclosure of her representation by the lawyer, and does not disqualify herself. 1. This opinion is based on the Model Code of Judicial Conduct as adopted by the ABA House of Delegates in February 2007 and on the ABA Model Rules of Professional Conduct as amended by the ABA House of Delegates through February 200?. 2. Model Rule 1.10, ?Irnputation of Con?icts of Interest: General Rule,? operates in the context of the subject matter of this opinion to disqualify other lawyers in the lawyer?s ?rm when the lawyer would be disquali?ed under Model Rule 1.7, ?Con?ict of Interest: Current Clients.? Moreover, Model Rule 5.1, ?Responsibilities of Partners, Managers, and Supervisory Lawyers,? requires that reasonable measures be in place within a law ?rm to identify such con?icts. 3. See, New York Adv. Committee on Jud. Eth. Op. 05?143 (Jan. 26, 2006) available at (recusal required where law ?rm, representing party before judge, was consulted by judge about pending investigation of complaint of unethical conduct). See also Arizona Sup. Ct- Jud. Eth. Adv. Committee Adv. Op. 92-11 (Sept. 9, 1992) (Potential Con?icts When Appearing Attorney Belongs to the Same Law Firm as Attorney Representing the Judge in an Unrelated Case), available at ethics/ethics_opin- i0nsi92?l 1 .pdf (judge who is represented by lawyer in lawsuit may preside over unre- lated case in which member of lawyer?s ?rm represents one of the parties). 3 Committee on Ethics and Professional Responsibility 07-449 1. Admission of Bias or Prejudice under Judicial Code Rule Judicial Code Rule provides generally that ?a judge shall disqualify himself or herself in a proceeding in which the judge?s impartiality might rea? sonably be questioned The ?rst speci?cally enumerated circumstance in which the question of a judge?s impartiality may arise is found in Judicial Code Rule ?[t]he judge has a personal bias or prejudice concerning a party or a party?s lawyer Although all other possible causes for disquali?- cation are subject to possible waiver by the parties under Section (C) of Judicial Code Rule 2.114, a judge?s bias or prejudice for or against a lawyer makes dis? quali?cation mandatory, With no possibility of waiver (a signi?cant change from the predecessor Model Code of Judicial Conduct). When a judge recog- nizes the existence of her bias or prejudice toward her lawyer and disquali?es herself, her lawyer?s potentially con?icting ethical obligations cease to exist. 2. Judge?s Disclosure of the Lawyer?s Representation under Judicial Code Rule The Committee does not assume that, Whenever a judge ?nds herself pre? siding over a matter in which a lawyer for one of the parties is concurrently representing her in an unrelated matter, she inevitably develops a personal bias or prejudice for or against her lawyer, thus triggering the mandatory and nonwaivable disquali?cation under Judicial Code Rule 2.1 The exis? tence or nonexistence of such bias or prejudice depends on the facts of any particular situation. When a judge reasonably concludes that she is not per? sonally biased or prejudiced toward her lawyer, she may continue to preside over the matter as long as she complies with the remaining requirements of Judicial Code Rule Judicial Code Rule provides that a judge subject to possible dis? quali?cation under Judicial Code Rule may continue to participate in the proceeding only if, as noted above, the disquali?cation does not involve the judge?s personal bias or prejudice concerning a party or a party?s lawyer. 4. The Committee notes that the standard for judicial disquali?cation for federal judges, set forth in 28 U.S.C. 455(a), contains no provision for possible waiver equiva- lent to Judicial Code Rule providing only that ?[a]ny justice, judge or magis- trate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.? See Texaco v. Chandler, 354 F.2d 655, 657 (10th Cir. 1965), cert. denied, 383 US. 936 (1966) (trial judge disquali?ed because litigant?s counsel had recently represented the judge in defense of unrelated civil darn- ages action against judge in course of his judicial activity); Rapp v. Van Dusen, 350 F.2d 806, 814 (3d Cir. 1965) (trial judge, although having no personal interest, was dis? quali?ed from further sitting because in earlier aspect of case, he allowed counsel for litigant to act as his counsel in response to mandamus petition for vacation of his order transferring case to another district); Smith v. Sikorsky Aircraft, 420 F. Supp. 661, 662 (CD. Cal. 1976) (trial judge, although having no personal bias, disquali?ed himself because litigant?s counsel had, in prior unrelated cases, represented judge in responding to two mandamus petitions; counsel also had represented judge personally). 07?449 Formal Opinion 4 In addition, the judge must disclose on the record the basis of her possible dis? qualification.5 Thereafter, the parties and their lawyers must all consider, out of the presence of the judge and court personnel, whether to waive the disquali?? cation and must unanimously agree that the judge should not be disquali?ed. 3. Failure of the Judge to Comply with Judicial Code Rule 2.11 Lawyer?s Participation in Judge?s Misconduct Finally, we address the ethical obligations of the lawyer whose judicial client fails to comply with Judicial Code Rule 2.11, thereby engaging in judi- cial misconduct. Rule 8.4(f) states that it is professional misconduct for a lawyer ?knowing? ly [to] assist a judge or judicial of?cer in conduct that is a violation of applic? able rules of judicial conduct or other law?" In our opinion, a lawyer?s con- tinued participation in a case presided over by a judge who is acting in viola? tion of Judicial Code Rule 2.11 constitutes ?assistance? of that misconduct in violation of Rule 8.403). The Model Rules elsewhere acknowledge that assis? tance of another?s wrongdoing does not require that the lawyer take affirma? tive steps in furtherance of the wrongdoing; in certain circumstances, silence can amount to improper assistance? Here, the lawyer?s silence would allow the judge to continue her violation of the Judicial Code. Reminding the Judge of Her Obligation Under Judicial Code Rule 2.11 A lawyer who hopes to avoid being a participant in the judge?s misconduct may choose to communicate with the judge regarding her failure to comply with Judicial Code Rule 2.11 (A). Such a communication is not, in our opin? ion, an improper ex parte communication as discussed and prohibited by both the Judicial Code and the Model Rules of Professional Conduct. 5. In ABA Standing Committee on Ethics and Professional Responsibility Informal Opinion 1477 (Aug. 12, 1981) (Requirement of Judicial Recusal When a Litigant is Represented by Judge's Lawyers), in FORMAL AND INFORMAL ETHICS OPINIONS, FORMAL OPINIONS 316-348, INFORMAL OPINIONS 1285-1495 (ABA 1985) at 404, we stated that, based upon interpretation of Canon of the 1972 Judicial Code, a judge was required to disqualify herself if she was represented by a lawyer who simultane- ously represented a client before her. That opinion suggested that ?[o]nly in unusual circumstances would a judge?s impartiality not be subject to reasonable question when a lawyer appearing before the judge in behalf of a client is at the same time represent- ing the judge in litigation pending before another court. . The opinion nevertheless acknowledged that where the judge?s relationship to the lawyer was ?immaterial? and she had only an ?insubstantial ?nancial interest,? remittal of disquali?cation would be permissible. Id. at 405. 6. The judge?s failure to disqualify herself also might amount to violation of ?other law? under Rule 8.4(f) if such disquali?cation were required by a statute. 7. See Rule ?Truthfuhiess in Statements to Others? (?In the course of repre? senting a client a lawyer shall not knowingly fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 5 Committee on Ethics and Professional Responsibility 07-449 Judicial Code Rule provides that judge shall not initiate, per- mit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, con? ceming a pending or impending One of the policies underlying the prohibition against ex parte contacts is the prevention of undue in?uence on a judge through'a lawyer?s discussion of a matter outside the presence of the other lawyers or parties. Where, as here, the communication does not extend to the merits of the matter in question,? such a communication is permissible under Judicial Code Rule The communication also is permissible from the lawyer?s perspective. Model Rule 3.5 prohibits a lawyer from seeking ?to in?uence a judge, juror, prospective juror or other of?cial by means prohibited by law? or from com? municating ?ex parte with such a person during the proceeding unless autho? rized to do so by law or court order.? We do not believe that an attempt to dis? suade a judge ?om conducting a proceeding constitutes an ex parte conversa- tion with the judge during the proceeding within the meaning of Rule 3.5. Lawyer?s Independent Disclosure of Representation of the Judge If the judge fails to withdraw from the matter or make appropriate disclo? sure on the record after the conversation with her lawyer, then the question arises whether the lawyer can either disclose the representation himself, with? out the judge?s consent, or continue in the representation without the judge making the disclosure in reliance on the fact that all the parties and their lawyers already know about the judge?s representation by the lawyer or a lawyer in his firm. Under Rule the fact of the lawyer?s representation of the judge (or of representation of the judge by another lawyer in his although not generally protected by the attorney?client privilege, nevertheless is considered con?dential information. The lawyer, therefore, cannot reveal such informa? tion unless the lawyer has the consent of the judge (unlikely if the judge her- self is unwilling to reveal the information), or has authority to do so under one of the exceptions to Rule 1.6. The Committee notes that, even if disclosure by the lawyer was permitted, the disclosure could not effectively cure the judge?s misconduct because it would leave unaddressed the question of whether or not the judge maintains a disqualifying bias or prejudice toward the lawyer, and it would do nothing to facilitate the necessary consideration by all parties, whether or not they chose to waive disqualification. For the same reasons, the judge?s misconduct can? not be cured by reliance on the fact that all parties to the matter already might be aware of the lawyer?s representation of the judge in another matter. Lawyer?s Obligation to Withdraw from Representation Earlier in this opinion, the Committee focused its attention on the consid- 8. Indeed, if the lawyer wished to exert undue in?uence, it is hardly likely that he would seek the judge?s withdrawal under the circumstances. 07-449 Formal Opinion 6 erations that a single lawyer must take into account when asked to undertake ?rst one, and then a second, representation. In that circumstance, the ultimate question the lawyer needs to answer is whether he can undertake, or must decline, the second of the representations. At least two situations can exist when the two representations are running concurrently. The ?rst occurs when a lawyer already represents the judge and discovers that a pending matter in which he has been representing another client is going to come before that judge. A second occurs when two different lawyers from the same ?rm have undertaken the two representations without each other?s knowledge. In either of these situations, the question that arises is not one of declining a representation, but one of deciding whether to with? draw from one or both representations? Having established that a lawyer?s continued participation in a matter from which the judge has refused to disqualify herself in violation of Judicial Code Rule 2.11 would violate Rule the Committee is of the opinion that Rule 1.16, which concerns withdrawal from representation, requires that the lawyer withdraw from at least one, and possibly both, representations.? Where the two representations are running concurrently and the judge has failed to make disclosure of her representation by one of the film?s lawyers, the Committee believes that, at least presumptively, the representation begun later in time is the one from which withdrawal would be required. For exam- ple, if a lawyer representing a client before a judge learns that another lawyer in his ?rm previously had undertaken representation of the judge, and the judge refuses to comply with Judicial Code Rule Rule would seem to require the law ?rm?s withdrawal from representing the newer client because it is that representation that results in an inevitable violation of Rule However, if a lawyer begins to represent a judge and learns that another lawyer in his ?rm already has been representing a client in a matter before that judge, Rule l.l6(a) might be read to require the law ?rm?s with- drawal from representing the judge, because the commencement of that repre- sentation triggered the lawyer?s violation of Rule 9. Lawyers who either represent judges, or practice in law ?rms that represent judges, would be well-advised to monitor the ?rm?s client list so that the lawyer and his ?rm can either avoid problems or, at the very least, recognize them before they become acute- This vigilance includes keeping the ?lm?s con?icts database up?to-date in the event a ?rm client might become a judge during the representation. See also last section of this opinion, ?Steps to Avoid Con?icts and Prevent Misconduct.? 10. See footnote 6 and accompanying text. 11. Rule provides that a lawyer ?shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct or other law.? 12. The other ?rm lawyer who represents the judge might consider a discretionary withdrawal under Rule or some other provision if the other lawyer called upon the judge to comply with Judicial Code Rule 2.11 and the judge insisted on con? tinuing to preside over the new client?s matter without complying with that Rule. 7 Committee on Ethics and Professional Responsibility 07?449 The examination of a lawyer?s obligations under Rule 1.16 may not be complete when he identi?es the need to withdraw from one of the representa? tions. Withdrawal from the second matter may be indicated as well. For example, when a lawyer withdraws from the representation of a judge who refused to recuse hers elf, the judge might develop a bias against him, or some other lawyer in his ?rm, that would render it dif?cult or impossible to provide effective representation to the client whose matter is before the judge. Additionally, the lawyer representing the client before the judge would be prohibited from disclosing the facts underlying the judge?s possible bias or prejudice, making it impossible for him to obtain the client?s consent to the continuation of the representation in spite of the judge?s bias. Thus, the lawyer may conclude that the required or most prudent course of conduct is to withdraw from both representations.? In that event, the lawyer would continue to be prohibited from disclosing any information protected by Rule unless the judge consented to the disclosure. Whether to Report Judge?s Misconduct We do not belreve that in the circumstances presented here, a lawyer can report his own client, the judge, to a disciplinary authority. As we stated in Formal Op. 04-433, Rule 1.6 takes precedence over any duty to report a client to a disciplinary authority.14 Nor do we believe that any of the exceptions for permissive disclosure under Rule 1.6(b) apply. The judge?s failure to recuse never would, as a practical matter, result in death or substantial bodily harm. It also is dif?cult to imagine any circumstance in which the judge?s failure to recuse constituted a crime or fraud that would result in substantial ?nancial injury to another, in furtherance of which the judge is using the lawyer?s ser- vices. The lawyer may, of course, under Rule reveal the judge?s con?dential information to another lawyer ?om whom the lawyer is seeking counsel as to his ethical obligations. Duration of Judge?s Disquali?cation Neither the Model Code of Judicial Conduct nor the Model Rules of Professional Conduct prescribe speci?c time periods, subsequent to a judge?s 13. Theoretically, a judge who retirees to comply with Judicial Code Rule 2.ll(A) also may refuse to allow the lawyer?s withdrawal. We think that such judicial intransi- gence is improbable. Although Rule l.16(c) indicates that a lawyer ?shall continue repre- sentation notwithstanding good cause for terminating the representation,? if the lawyer is ordered to do so by a tribunal, a lawyer con?'onting such an extraordinary circumstance might consider seeking relief from another judge or court, including a request that the matter be placed under seal. As in the context of a lawyer?s mandatory withdrav'val based on a client?s misconduct, the court may request an explanation for the withdrawal, while the lawyer may be bound to keep con?dential the facts that Would constitute such an explanation; the lawyer?s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Rule 1.16 cmt. 3. 14. ABA Formal Opinion 04-433 (Aug. 25, 2004) (Obligation of a Lawyer to Report Professional Misconduct by a Lawyer Not Engaged in the Practice of Law), slip op. at 6-7- 07-449 Formal Opinion 8 disquali?cation, within which a lawyer ought not to appear before the judge on behalf of a client.15 In the Committee?s opinion, questions as to the appro? priateness of a lawyer?s returning to a judge?s court must be decided under the more general consideration underlying Judicial Code Rule name? ly, whether a reasonable person would believe, in light of the time that had elapsed, that the judge?s fairness and impartiality could still be questioned.l? Factors to be considered in making that assessment include whether the mat? ter was consequential (for example, defending the judge in a judicial discipli- nary proceeding or responding to allegations regarding the judge?s integrity), whether the matter was relatively inconsequential (for example, a routine real estate transaction), the size of the fee paid to the lawyer by the judge, whether the representation was isolated or one of several instances in which the lawyer represented the judge, and whether the representation was in a matter that was highly con?dential or highly publicized. Steps to Avoid Con?icts and Prevent Misconduct There are numerous steps that a lawyer might helpfully consider when considering whether to represent a judge in the various circumstances dis? cussed in this opinion. He might avoid the ethical problems altogether by including in his engagement letters a provision that, in the event the lawyer or a lawyer from his ?rm appears before the judge during the representation, the judge will either disqualify herself entirely or make appropriate disclosures on the record as required under the Judicial Code. A lawyer also may consid- er obtaining an advance waiver of con?dentiality in the engagement letter, along with a recommendation that the judge seek the advice of independent counsel before consenting to such a waiver. 15. The? Committee notes that Judicial Code Rule recommends that jurisdictions ad0pt a speci?c time limit for the disquali?cation required when a judge has accepted a campaign contribution from a lawyer or the lawyer's ?rm. We also note that the Judicial Code is otherwise silent as to time limitations related to disquali? ?cation for all other reasons. 16. New York Adv. Committee on Jud. 13th., Op. 05-143, supra note 3, stated that the judge?s recusal obligation expires two years after the judge last consults the lawyer on the matter giving rise to the disquali?cation. The New York Committee cited New York Ethics Opinion 92-54 (June 8, 1992), available at which provides a list of relevant factors for the judge to consider to determine if disquali?cation is the proper course, including ?the nature of the instant proceeding, the nature of the prior repre- sentation by the attorney, and its frequency and duration, the length of time since the last representation, the amount of work done for the judge by the attorney and the amount of the fee, whether the representation was routine or technical or involved the morality of the judge?s conduct, whether whether there exists a social relationship between the judge and the judge?s former attorney, and whether there are any Special circumstances creating a likely appearance of impropriety.