Recusal: Use it or Lose it

Attorneys and their clients must make strategic decisions during litigation whether to take certain actions that are available to them. Should you move for dismissal or answer the complaint? Should you seek more specific answers to written discovery, or just save your questions for a deposition? These are common questions that do not necessarily have a “right” answer. However, the Pennsylvania Supreme Court recently ruled that waiting too long to decide on a motion to recuse may result in the request being untimely.

In Lomas v. Kravitz, et al, a contractor obtained an arbitration judgment in his favor and against a developer for failing to pay him fees owed under a contract. The contractor then brought a subsequent suit against the developer for allegedly moving funds around his various companies to avoid paying the judgment. In the second action, the contractor was represented by an attorney who was later appointed to the bench and referred the case out to another firm. The case then proceeded in the very county in which the contractor’s former attorney sat as a judge. The judge was ultimately called as a witness in the case, and disclosed that he would receive a referral fee from any reward obtained. 39 days later the developer moved for recusal of all judges in the county due to their relationship with a judge/witness with a financial interest in the case.

The Pennsylvania Supreme Court held that “a party must seek recusal of a jurist at the earlier possible moment, i.e., when the party knows of the facts that form the basis for a motion to recuse.” The failure to do so results in the recusal issue becoming time-barred and waived. Although the Court made sure to clarify it did not intend to set in stone any particular time-table, the intent to limit strategic maneuvering was clear.

The decision shows that on an issue similar to forum-shopping, parties must act with haste in deciding if potential appearances of impropriety require recusal. While it would be near impossible for a court to find a motion to be based on an ulterior basis, waiting over a month to make the motion allows for such inferences. If the court sees a party who is well aware of the potential conflict and fails to move for recusal, it is permitted to assume the potential conflict is not the true reason for seeking recusal and deny the motion. Attorneys should therefore act quickly to make a decision on recusal, regardless of the reasons, or risk finding themselves without the option at all.