Jun 14, 2018

AREAS OF LAW: Practice of law; Judicial impartiality; Bias; Defamation

Carbone v. McMahon, 2017 ABCA 384 (CanLII)

Where a judge has recently retained a lawyer who now appears before that judge, the judge has a duty to disclose the nature and extent of the retainer so that the court and counsel can determine whether it is appropriate for the judge to be recused.~

BACKGROUND: The Appellant, Angela Carbone, brought a medical malpractice action against a plastic surgeon in 2015. During the course of that litigation, the Appellant also commenced defamation actions against the surgeon’s lawyers, the Respondents Megan McMahon and Taryn Burnett. The first case management judge on the defamation action had a conflict. Another judge was assigned to take over case management, but he discovered that one of the Respondents was a friend’s daughter and recused himself. A third judge was appointed case manager. At the first case management meeting, he reported that counsel for the Respondents had previously acted for him, but that he did not think this would be a problem. The Appellant brought a recusal application that was heard almost two years after the issue was first raised. The judge dismissed the application, indicating that he had been part of a group that had retained the Respondents’ counsel, not an individual client, and that the connection between them had been a passing one. The retainer on that matter had concluded 10 months before the judge was appointed as case manager.

APPELLATE DECISION: The appeal was allowed. The majority clearly stated that judges are not required to recuse themselves at the whim of counsel or, as was the case here, self-represented litigants. However, they also noted that the judge had retained Respondents’ counsel recently and that the details of that retainer were obscure. The majority considered it appropriate in the circumstances to request that the Chief Justice assign another judge to the case.

Mr. Justice Wakeling concurred in the result. He noted that the case raised the issue of bias, and considered it significant that the judge dealt with the issue of recusal almost two years after the Appellant had raised it. The judge had a duty to disclose in a timely manner any information that would cause an objective observer to conclude that the judge might be biased. This would include disclosure regarding the nature of the solicitor-client relationship between the judge and Respondents’ counsel, a precise description of the services provided to the judge, the amount if any the judge paid in fees to counsel, and how likely it was that the judge would retain this counsel again in future. If the retainer was not minor, a cooling off period may be required before the judge could hear this lawyer again. In this case, the judge did not provide the necessary disclosure that would have allowed the parties or the court to characterize the retainer as minor or not minor. Mr. Justice Wakeling would set aside the dismissal of the recusal application and request a new judge be appointed.