CJEO Formal Opinion No. 2015-007 — Disqualification for Prior Appearance as a Deputy District Attorney in a Nonsubstantive Matter

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144A
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Formal Opinion No. 2015-007
[Issued January 29, 2015]
DISQUALIFICATION FOR PRIOR APPEARANCE AS A DEPUTY DISTRICT
ATTORNEY IN A NONSUBSTANTIVE MATTER
I. Question Presented
The Committee on Judicial Ethics Opinions (CJEO) has been asked to provide an
opinion on the following question:
Is a judge disqualified from presiding over a criminal case if the judge appeared in
that case as a deputy district attorney, but only for a brief, nonsubstantive matter
such as a scheduling conference?
II. Summary of Conclusions
Trial judges have a statutory duty to hear all matters coming before them unless
they are disqualified. (Code Civ. Proc., § 170).1 A judge is disqualified to hear a matter
if the judge previously “served as a lawyer in the proceeding.” (§ 170.1, subd. (a)(2)(A).)
Taken together, the purpose of these statutes is to promote both the public’s faith in the
1 All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.

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impartiality of judges and the efficient and effective administration of justice by requiring
disqualification in only those circumstances where there is a reasonable doubt as to
impartiality.
Where a judge has previously acted as an advocate for one party in a proceeding
that later comes before that judge, the law, quite logically, presumes an impairment of
impartiality. It is the committee’s opinion, however, that a judge who previously
appeared in a case as a deputy district attorney only in a perfunctory, nonsubstantive role,
such as a brief appearance on a scheduling or uncontested matter, is not disqualified for
having “served as a lawyer in the proceeding,” unless the judge in some fashion actively
participated in the case. To conclude otherwise would impede the administration of
justice where there is no reason to doubt impartiality, contrary to the purposes of the
disqualification statutes.
III. Authorities
A. Applicable Canons
Canon 3E(1): “A judge shall disqualify himself or herself in any proceeding in
which disqualification is required by law.”
B. Other Authorities
California Code of Civil Procedure, sections 170, 170.1, 170.3, 170.5
Apple Inc. v. Superior Court (2013) 56 Cal.4th 128
Burden v. Snowden (1992) 2 Cal.4th 556
Holmes v. Jones (2000) 83 Cal.App.4th 882
In re Arthur S. (1991) 228 Cal.App.3d 814
In re Dannenberg (2005) 34 Cal.4th 1061
Muller v. Muller (1965) 235 Cal.App.2d 341

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People v. Barrera (1990) 70 Cal.App.4th 541
People v. Bryan (1970) 3 Cal.App.3d 327
People v. King (2006) 38 Cal.4th 617
People v. Peralez (1971) 14 Cal.App.3d 368
People v. Thomas (1972) 8 Cal.3d 518
Sincavage v. Superior Court (1996) 42 Cal.App.4th 224
United Farm Workers v. Superior Court (1985) 170 Cal.App.3d 97
Rothman, California Judicial Conduct Handbook (2013 supp.) section 7.37
IV. Discussion
A. Introduction
The disqualification statutes require trial judges to hear all cases assigned to them
unless they are disqualified due to, inter alia, having previously “served as a lawyer in the
proceeding.” (§ 170.1 subd. (a)(2)(A); see § 170.) Judges who are former deputy district
attorneys sometimes face the question of whether they are duty bound to hear a case or
are disqualified because they previously participated in the matter briefly and
superficially (at an uncontested motion or in a scheduling conference), without gaining
knowledge of the disputed facts and legal issues, and thus having no occasion to form an
opinion or develop a bias about the case that would prevent them from being impartial.
This question arises out of the practical realities of criminal law practice, which often
involves various perfunctory motions and proceedings.2 As a result of the high-volume
2 These circumstances also exist in other public agencies that provide criminal law
services, such as public defenders offices, so the question also arises for judges with such
pre-bench criminal law experience. (See People v. Barrera (1990) 70 Cal.App.4th 541,
579 [nonwaivable disqualification of a commissioner who previously represented the
defendant as a deputy public defender].) The committee, however, has been asked about

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caseloads in many district attorneys’ offices, it is not uncommon for a deputy district
attorney to be handed a court file and asked to appear in a nonsubstantive matter without
any need (or opportunity) to learn about the disputed facts, the legal issues or the
prosecution’s strategy in the case. The committee has been asked to provide guidance on
whether these nonsubstantive appearances constitute “serv[ice] as a lawyer” that requires
disqualification under section 170.1, subdivision (a)(2). The answer to that question
requires, first, an examination and construction of the language in the disqualification
statutes.
B. Statutory Language
1. Principles of statutory construction
When interpreting statutory language, “‘“our fundamental task is ‘to ascertain the
intent of the lawmakers so as to effectuate the purpose of the statute.’”’” (Apple Inc. v.
Superior Court (2013) 56 Cal.4th 128, 135.) Because statutory language generally
provides the most reliable indicator of that intent, the words of the statute are given their
usual and ordinary meanings, as construed in the context of the statute as a whole.
(Burden v. Snowden (1992) 2 Cal.4th 556, 562.) Additionally, statutes relating to the
same subject must be harmonized, both internally and with each other, to the extent
possible. (Holmes v. Jones (2000) 83 Cal.App.4th 882, 888.)
The plain meaning of the statutory language controls if there is no ambiguity.
(People v. King (2006) 38 Cal.4th 617, 622.) If, however, the statute is susceptible to
more than one reasonable construction, legislative history may be examined. (In re
Dannenberg (2005) 34 Cal.4th 1061, 1081-1082.) Finally, the impact of an interpretation
on public policy may also be considered, for where uncertainty exists consideration
should be given to the consequences that will flow from a particular interpretation.
(Ibid.)
the disqualification requirements of former deputy district attorneys and this opinion
discusses only those factual circumstances.

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Here, two statutes are relevant to our inquiry. Section 170 provides that “[a] judge
has a duty” to serve unless “disqualified.” Section 170.1 sets forth the grounds for
disqualification. Read together, these sections are understood to mean that “[t]he duty of
a judge to sit where not disqualified is equally as strong as the duty not to sit when
disqualified.” (United Farm Workers of America v. Superior Court (1985) 170
Cal.App.3d 97, 100.) It is in this context that the narrower question posed to the
committee must be examined.
2. The disqualification requirements
Specific disqualification grounds for prior service as a lawyer are provided in
section 170.1, subdivision (a)(2), as follows:
“(a) A judge shall be disqualified if any one or more of the following are true:
. . .
“(2) (A) The judge served as a lawyer in the proceeding, or in any other
proceeding involving the same issues he or she served as a lawyer for a
party in the present proceeding or gave advice to a party in the present
proceeding upon a matter involved in the action or proceeding.
“(B) A judge shall be deemed to have served as a lawyer in the proceeding
if within the past two years:
“(i) A party to the proceeding, or an officer, director, or trustee of a
party, was a client of the judge when the judge was in the private
practice of law or a client of a lawyer with whom the judge was
associated in the private practice of law.
“(ii) A lawyer in the proceeding was associated in the private
practice of law with the judge.
“(C) A judge who served as a lawyer for, or officer of, a public agency that
is a party to the proceeding shall be deemed to have served as a lawyer in
the proceeding if he or she personally advised or in any way represented the
public agency concerning the factual or legal issues in the proceeding.”

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The primary disqualifying factor in subdivision (a)(2) is where a judge “served as
a lawyer in the proceeding.” (§ 170.1, subd. (a)(2)(A), italics added.) Subdivision
(a)(2)(A) also requires disqualification where, in any other proceeding involving the
same issues, a judge served as a lawyer for, or gave advice to, a party in the present
proceeding. (Ibid.) Based on the question posed, the second part of subdivision
(a)(2)(A) does not apply to this analysis. 3
Additional disqualifying factors are provided in subdivision (a)(2)(B) and (C),
which deem a judge to have served as a lawyer in the proceeding in distinct
circumstances where the judge did not actually “serve[] as a lawyer in the proceeding”
but, because of other facts, is disqualified as if the judge served as a lawyer in the
proceeding. (§ 170.1, subd. (a)(2)(B) & (C).) Subdivision (a)(2)(B) deems a judge to
have served as a lawyer in the proceeding when a party was a client of the judge in
private practice or a client of a lawyer who was in private practice with the judge, within
the previous two years. Subdivision (a)(2)(C) also deems a judge to have served as a
lawyer in the proceeding when the judge served as a lawyer for a public agency party and
the judge advised or represented the public agency concerning the factual or legal issues
3 Sincavage v. Superior Court (1996) 42 Cal.App.4th 224 (Sincavage) provides an
example of facts that might give rise to disqualification based on the judge’s service as a
lawyer in another proceeding involving the same issues. In Sincavage, the trial judge had
conducted a preliminary examination as a deputy district attorney in the case involving
the defendant’s prior convictions, which were alleged as strikes in the proceeding before
the judge. The Sincavage court, however, did not reach the issue of whether the other
proceedings on the defendant’s priors involved the same issues under section 170.1,
subdivision (a)(2)(A). Instead, the court concluded the judge was disqualified under
section 170.1, subdivision (a)(6)(A)(iii), based on two facts: (1) the judge “was active in
the prosecution of the priors,” and (2) the judge had stated on the record, before her
appearance in the preliminary examination was discovered, that she would “automatically
recuse herself” if she had actively participated in the defendant’s priors, but then failed to
do so. The Sincavage court found, “A doubt as to impartiality and fairness arises when
the judge changes her mind upon learning the very fact which she earlier said would
disqualify her.” (Id. at p. 230.)

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in the present proceeding.4 In both circumstances, a judge who did not appear in the
present court proceeding is disqualified as if he or she served as a lawyer in the
proceeding.
Thus, the circumstances specified in subdivisions (a)(2)(B) and (C) also do not
apply to the narrow question posed (disqualification for previous nonsubstantive
appearance in the same proceeding), but they do provide a statutory context within which
to discern the intended meaning of the term “served as a lawyer in the proceedings.”
3. The meaning of “served as a lawyer”
The phrase “served as a lawyer in the proceedings” can be—and has been—
construed to mean that any appearance of any type by a lawyer in a proceeding would
subsequently disqualify the judge who had made that appearance “regardless of how
significant the judge’s role was at the time.” (Rothman, Cal. Judicial Conduct Handbook
(2013 supp.) § 7.37, p. 12.) Another view, however, is that the Legislature did not intend
to have the question of judicial disqualification for prior service as a lawyer in the
proceeding turn on “an inconsequential formality.” (In re Arthur S. (1991) 228
Cal.App.3d 814, 820 (Arthur S.).) Although the court in Arthur S. decided that
successive juvenile proceedings filed under the same case number were separate
proceedings and ultimately determined disqualification based on the lack of similar
issues, the court’s rationale suggests that the statutory term “served as a lawyer in the
proceeding” is susceptible to more than one reasonable construction.
4 The use of the words “represented or advised” distinguishes the service in section
170.1, subdivision (a)(2)(C) from service as a lawyer in the proceedings in subdivision
(a)(2)(A). “Proceedings” are statutorily defined as “the action, case, cause, motion, or
special proceeding to be tried or heard by the judge.” (§ 170.5, subd. (f).) Thus,
subdivision (a)(2)(C) applies to lawyers who represent and advise public agencies in
forums other than court proceedings, such as administrative and agency hearings, and
who provide to the agencies legal advice generally. As an example, a former deputy
county counsel who represented the county in annexation hearings before a local agency
formation commission (LAFCO) is disqualified under subdivision (a)(2)(C) from
presiding as a judge over a court proceeding challenging some aspect of that LAFCO
annexation.

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Thus, we look to the legislative history to assist in determining whether the
legislature intended that a brief, nonsubstantive appearance in the same proceeding would
require judicial disqualification.
4. Legislative history
The most significant amendments to the disqualification statutes occurred in 1984
and 2005. In 1984, the Legislature sought to clarify the requirements for disqualification,
which had been amended more than 20 times since 1927 and had become ‘murky.’ (Sen.
Keene, sponsor of Sen. Bill No. 1633 (1983-1984 Reg. Sess.), letter to Governor, Sept. 6,
1984, requesting approval.) Former section 170 was replaced by former sections 170–
170.5. (Stats. 1984, ch. 1555, § 5, p. 5479.) The Legislature made two key changes: (1)
it enacted the provision that a judge has a duty to serve where not disqualified, and (2) it
replaced the subjective standard of actual bias with an objective standard of reasonable
doubt as to impartiality.5 In addition, disqualification of a judge who had been “attorney
or counsel for any party” in “the action or proceeding” under former section 170,
subdivision (a)(4) (as amended by Stats. 1982, ch. 1644, § 1, p. 6678) was replaced by
section 170.1, subdivision (a)(2), which requires disqualification of a judge who had
previously “served as a lawyer in the proceedings.” While the legislative history makes
no mention of reasons for these specific changes, it does show that the amendments,
overall, were intended to restate the standards for judicial recusal and require
disqualification “where it is not in the best interest of the administration of justice; where
there is a question of the judge’s ability to be impartial; or where a third person might
reasonably question whether there is an appearance of partiality.” (Jud. Council of Cal.,
5 Section 170, subdivision (a)(5) was replaced in 1984 by section 170.1, former
subdivision (a)(6)(C) (now numbered as § 170.1, subd. (a)(6)(A)(iii)), which requires
disqualification where “a person aware of the facts might reasonably entertain a doubt
that the judge would be able to be impartial.” (See Sen. Com. On Judiciary, Analysis of
Sen. Bill No. 1633 (1983-1984 Reg. Sess.), as amended Mar. 19, 1984, p. 3.) The
objective reasonable doubt standard is discussed in IV.B.(5), post, at pages 10-15.

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letter to Assem. Com. On Judiciary re Sen. Bill No. 1633 (1983-1984 Reg. Sess.), Jun.
13, 1984, supporting passage.)
In 2005, the Legislature again amended section 170.1, primarily to clarify the
grounds for disqualification of judges considering prospective employment as an
alternative dispute resolution (ADR) neutral under section 170.1, subdivision (a)(8). At
the same time, technical changes were made to separate the section 170.1, subdivision
(a)(2) disqualification factors into subdivision (a)(2)(A)-(C), although no substantive
changes were made to these relevant provisions. The legislative history shows that
section 170.1. subdivision (a)(8) was amended because the provision had been strictly
interpreted to require disqualification if a judge had any discussions with an ADR
provider, even when those discussions were unsolicited or entirely superficial. Concern
was expressed that recusal could be required when a judge merely appointed an ADR
neutral in a proceeding without discussing or intending prospective employment. The
2005 amendment clarified that disqualification was required only where a judge ‘has
meaningfully participated’ in prospective employment discussions and had a specified
conflict of interest with an ADR provider. (Sen. Rules Com., reading analysis of Assem.
Bill No. 1322 (2005-2006 Reg. Sess.), July 14, 2005, p. 4.) The express intent of the
Legislature in enacting this amendment was to “‘prevent the wholesale disqualification of
civil judges’” (id. at p. 3) which could “‘severely hamper a trial court’s ability to manage
its civil litigation calendar.’” (Sen. Com. On Judiciary, analysis of Assem. Bill No. 1322
(2005-2006 Reg. Sess.) for hearing on July 12, 2005, p. 70). As the author and sponsors
of the legislation noted, “judges whose authority rests fundamentally on the well-
deserved public esteem for the integrity of the judiciary would be prudent to avoid the
potential perception of impropriety . . . .” (Assem. Com. on Judiciary, analysis of Assem.
Bill No. 1322 (2005-2006 Reg. Sess.) as amended Mar. 29, 2005, p. 4.)
The legislative histories of the 1984 and 2005 enactments show two clear purposes
for the disqualification statutes as a whole: one is to promote trust by precluding judges
from presiding in those circumstances where there is a reasonable doubt as to
impartiality, and the other is to further the administration of justice by requiring judges to

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preside where there is no reasonable doubt as to impartiality. In view of these dual
purposes, it appears that the term “served as a lawyer in the proceedings” in section
170.1, subdivision (a)(2) is intended to require disqualification where the judge
performed any legal services in the case that could raise a reasonable doubt about the
judge’s impartiality. What, then, are the types of prior legal services that implicate
possible bias or partiality? The courts in California and other jurisdictions provide
guidance in answering this question.
5. Reasonable doubt as to impartiality
While no officially reported California case directly decides whether or not a
nonsubstantive appearance in the same proceeding is disqualifying, courts that apply the
reasonable doubt standard to disqualification decisions in similar circumstances are
instructive.6
For example, in the circumstances of a prior appearance on a substantive matter in
the same proceeding, disqualification is clearly required. (People v. Crappa (1925) 73
Cal.App. 260, 261 [judge’s revocation of probation and sentencing reversed where the
judge previously appeared as a deputy district attorney at the defendant’s arraignment and
probation hearings in the same matter].) Disqualification is similarly required for
substantive involvement in another proceeding related to the matter before the judge.
(Sincavage, supra, 42 Cal.App.4th at p. 230 [disqualification based on judge’s
appearance as a deputy district attorney at the defendant’s preliminary hearing in a prior
conviction which was charged as a prior in the matter pending before the judge].)
Significantly, the court in Sincavage found that the judge’s prior appearance at a
preliminary hearing led to the conclusion that “a person knowing these facts would
6 Many of the California cases addressing disqualification for prior service as a
lawyer are decided on procedural grounds such as waiver and timeliness, which are not
directly relevant to this advisory opinion. (See People v. Barrera, supra, 70 Cal.App.4th
at p. 579; Sincavage, supra, 42 Cal.App.4th at pp. 230-232; Muller v. Muller (1965) 235
Cal.App.2d 341, 346-348.) However, insight may be gleaned where reasonable doubt is
addressed in passing.

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entertain doubt that [the] Judge . . . would be impartial in ruling on matters involving the
[defendant’s] priors.” (Sincavage, supra, 42 Cal.App.4th at p. 230.) One of the facts the
Sincavage court relied on in reaching this conclusion was that the judge had been “active
in the prosecution of the priors.” (Ibid.)
Conversely, the absence of active participation is a deciding factor for several
courts that have ruled against disqualification. In People v. Peralez (1971) 14
Cal.App.3d 368, the judge had been the district attorney of the county at the time of the
defendant’s prior conviction. The defendant argued on appeal that the “mere presence of
the judge’s name on the conviction record” was grounds for reversal based on bias. (Id.,
at p. 375.) The court rejected the appellant’s contention that a judge is disqualified if he
was previously “the least bit associated with the prior conviction.” (Ibid.) Rather, the
court found that it was not reasonable to conclude that the judge had an obligation to
disqualify “when there is no indication of any actual participation in the previous action.”
(Id., at p. 376.)
Nor is disqualification required for merely having been an assistant district
attorney without any actual participation in the defendant’s prosecution. (People v.
Thomas (1972) 8 Cal.3d 518, 521.) In Thomas, the court found that the disqualification
statute should be “liberally construed with a view to effect its objects and to promote
justice” and that the object of the statute “‘is not only to guard jealously the actual
impartiality of the judge but also to insure public confidence.’” (Id., at p. 520.) The
court concluded that it would be unreasonable to assume a trial judge’s prior
representation of the People in other matters would impair his impartiality or undermine
public confidence. (Ibid.)
The kinds of active participation that would raise a reasonable doubt as to
impartiality are specifically addressed in People v. Bryan (1970) 3 Cal.App.3d 327
(Bryan). In Bryan, a judge pro tem was not required to disqualify because of a prior
appearance as a deputy district attorney at the defendant’s sentencing on a prior
conviction. (Bryan, supra, 3 Cal.App.3d at p. 342.) The record disclosed that the judge
had not prosecuted the case, and had not participated in post-conviction proceedings or in

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an appeal that affirmed the judgment. The judge had merely appeared at a sentencing
hearing following the appeal where the originally imposed sentence was reaffirmed. It
was noted by the court that the record showed the judge “was simply in the courtroom to
take care of the many matters calendared on that date and took no part in the reaffirmance
of a sentence originally pronounced.” (Ibid.) The judge stated that he knew nothing
about the case at the time of this appearance. The court found that these circumstances
did not merit disqualification under the statute. (Ibid.)
The conclusion we draw from these California cases is that disqualifying service
as a lawyer in the proceeding requires at least a modicum of active participation. It
would be unreasonable for the law to presume that a judge’s prior appearance at a
perfunctory, nonsubstantive hearing—essentially carrying out an administrative task—
would compromise the judge’s impartiality. Where the appearance was so brief and
inconsequential that the judge gained no knowledge of the disputed facts, the legal issues,
or the prosecution’s strategy, a rational person aware of the circumstances would not
have reason to believe that any bias was formed. If, on the other hand, the judge actively
participated in any way, for example, by reviewing the facts and arguing the merits of
even a minor disputed matter, a doubt as to the judge’s impartiality would be reasonable.
A number of other jurisdictions are in accord regarding the requirement of active
participation.7 We note that some jurisdictions, however, follow the view that any
appearance requires disqualification.8 In those jurisdictions that recognize active
7 (See Laird v. Tatum (1972) 409 U.S. 824, 828 [Supreme Court justice who was
formerly a Justice Department official is disqualified if he either signs a pleading or brief
or if he “actively participated” in any case even though he did not sign a pleading or
brief]; U.S. v. Ruzzano (7th Cir. 2001) 247 F.3d 688, 695 [some level of actual
participation in the case by the judge while serving as an assistant United States attorney
is required to trigger disqualification, on the basis that he or she participated as counsel,
adviser, or material witness concerning the proceeding, or expressed an opinion
concerning merits of case in controversy].)
8 (See Com. v. Young (1970) 439 Pa. 498, 500 [disqualification is required for
judges who, prior to ascending the bench, had association with either the prosecution or
the defense in the trial of the case]; Ex parte Sanders (1995) 659 So.2d 1036, 1037-1039

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participation as a deciding factor, some examples of active participation found to be
disqualifying include: (1) prior involvement in the investigation of the case; (2)
presentation of the case to the grand jury; (3) prosecution of the defendant’s indictment;
(4) active involvement in obtaining the underlying conviction; and (5) a review of the
case file and expressing a written opinion in the matter. 9 Examples of prior prosecutorial
service found not to be active participation and therefore not disqualifying include: (1) a
stamped signature on a notice without participation in the grand jury or trial; (2) no
examination of the file, participation in the investigation, interview of witnesses, or
preparation of legal research; (3) a single appearance to request a continuance in an
underlying matter; and (4) assigning the case to another attorney and agreeing with a
defense request to expedite the indictment. 10 These examples of the types of active
[disqualification of a former district attorney is required where, at one point, the judge
had been attorney of record for the cases against the defendant].)
9 (See United States v. Pepper & Potter, Inc. (1988) 677 F.Supp. 123, 125-126 [a
judge’s prior involvement in the investigation of defendant’s case, which consisted of
reviewing, signing, and submitting an application to the court for the empanelment of a
grand jury, was “not merely of a pro forma nature” and would prompt an objective
observer to question the judge’s impartiality]; State v. Tucker (1993) 254 N.J.Super. 549,
555 [the impartiality of a judge who, as prosecutor, presented the defendant’s case to the
grand jury, might reasonably be questioned]; Jenkins v. State (1990) 570 So.2d 1191,
1193 [a reasonable person knowing that the judge acted as prosecutor during defendant’s
indictment would question impartiality]; Smith v. State (2011) 357 S.W.3d 322, 342 [a
person of ordinary prudence would have a reasonable basis for questioning judge’s
impartiality where the judge, as prosecutor, was actively involved in prosecuting
defendant in related matters and had been in possession of critical evidence used to
convict the defendant in the matter before the judge]; Lee v. State (1977) 555 S.W.2d
121, 125 [a trial judge who, while district attorney staff, reviewed the case and sent a
letter to defense counsel containing opinions about the defendant’s record and a
recommended sentence, was disqualified from presiding].)
10 (See Gamez v. State (1987) 737 S.W.2d 315, 318-320 [a judge is not disqualified
simply because his stamped signature appeared on a notice, but where he did not
participate in the grand jury or trial, conduct an investigation, interview witnesses,
prepare legal research, or examine the file]; Mort. Elec. Registr’n Sys. v. Book (2006) 97
Conn.App. 822, 830-831 [a judge’s impartiality could not reasonably be questioned on
the basis of his prior role as a prosecutor in another matter in which he appeared only

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participation that may or may not be disqualifying are in line with Bryan, supra, 3
Cal.App.3d at page 343, and with our view of the intended meaning of service as a
lawyer in the proceedings.
Thus, it is the committee’s opinion that a judge who previously appeared in a case
as a deputy district attorney on a nonsubstantive matter, without any active participation
in the prosecution, is not disqualified for having served as a lawyer in the proceeding. To
conclude otherwise would impede the administration of justice where there is no
perception of partiality, contrary to the purpose of the disqualification statutes.
VI. Conclusions
It is the committee’s opinion that the term “served as lawyer in the proceeding” in
section 170.1, subdivision (a)(2)(A), is intended to include any active participation as an
attorney for a party that could create a reasonable doubt as to impartiality. It is also the
committee’s opinion that active participation does not include a brief appearance on a
scheduling or uncontested matter where special knowledge about the case is not gained
and hence no opinion or bias about the matter could be formed. These facts would not
create a reasonable doubt as to the impartiality of a judge who had made this kind of
nonsubstantive appearance. A conclusion that such an appearance would require the
disqualification of a judge would impede the efficient and effective administration of
justice, contrary to the purpose of the disqualification statutes, by removing a judge
where there is no reasonable perception of partiality.

This opinion is advisory only (Cal. Rules of Court, rule 9.80(a), (e); Cal. Com.
Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rule 1(a), (b)). It is based
once and performed only a limited function, merely requesting a continuance]; People v.
Del Vecchio (1989) 129 Ill.2d 265, 277-278 [disqualification deemed unnecessary where
the judge, as a prosecutor, played only a limited role in the defendant’s prosecution by
assigning the case to another attorney and by agreeing with a defense request to expedite
the indictment].)

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on facts and issues, or topics of interest, presented to the California Supreme Court
Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,
rule 9.80(i)(3); CJEO rules 2(f), 6(c)), or on subjects deemed appropriate by the
committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)).