One admonishment given to young law students is to treat everyone around you well because the profession is small, and you may never know whom you will encounter again. It is not uncommon for law school classmates to face each other in courtrooms across the country. Rare is it, however, that a judge denies a party the counsel of his choice because of a connection between the judge and the proposed attorney. Recently, in Doe v. Trustees of Boston College, Judge David J. Barron denied John Doe’s motion for Professor Jeannie Suk Gersen to argue his Title IX case before the U.S. Court of Appeals for the First Circuit. Although a three-judge panel of the First Circuit eventually overturned his order, they did so only after affirming it with an unwritten dissent. This course of action was both unusual and without explanation, which does a disservice to future litigants who have no guidance for when their attorney’s professional relationship with the judge will result in their attorney’s ban on participation in the case, rather than the judge’s recusal.
This case arose out of a 2019 university administrative hearing and investigation that found Doe engaged in sexual misconduct in violation of Boston College’s Code of Conduct. The school suspended him from the university for one year with a one-year probation to follow. After BC rejected Doe’s appeal, Doe filed suit in the U.S. District Court for the District of Massachusetts claiming that BC had violated Title IX, breached his contract with the school, and acted negligently when they failed to provide him with adequate procedure and basic fairness before punishing him for sexual misconduct. He sought damages and a preliminary injunction to reinstate him at BC for the duration of the lawsuit. Finding a likelihood of success on the merits, Judge Douglas P. Woodlock granted Doe’s request for a preliminary injunction. Boston College brought an interlocutory appeal of the injunction, claiming that the district court had erred in concluding that Doe was likely to succeed on the merits.
On October 24, Suk Gersen moved to appear as counsel for Doe. Doe retained Suk Gersen to argue the appeal, and she had worked on the briefing, but had been delayed in making a formal appearance while she waited to receive the necessary paperwork for admission to the First Circuit Bar. On the same day, Judge Barron denied the motion “because it would create a recusal.” His order gave no further explanation. On October 28, Doe filed a motion to reconsider. The two attorneys who previously worked on his case were unavailable—one because of the death of his brother and the other because her child was due a few days before oral argument—and Doe retained Suk Gersen on short notice because of “her already established expertise on the legal issues involved.” On October 29, Judges Sandra L. Lynch, Michael Boudin, and Kermit V. Lipez denied Doe’s request. The following day, they issued a corrected order noting that Judge Lipez dissented, but that order did not offer the grounds for the dissent. On October 31, Doe petitioned for rehearing en banc, but this was dismissed as moot because the three-judge panel granted Suk Gersen’s motion on November 1.
By statute, federal judges must recuse themselves when their “impartiality might reasonably be questioned.” Nowhere in the statute, however, is there provision for resolving a question of partiality by preventing parties from having the counsel of their choice. Rather, the appropriate remedy for conflicts of interest is for judges to recuse themselves. Ultimately, Judge Barron did not sit on the panel that heard Doe’s case—which itself reveals that a panel could be constructed regardless of whether Suk Gersen appeared as counsel.
Although the orders did not say which judge Suk Gersen’s appearance would impact, Suk Gersen inferred that it was likely Judge Barron himself because he was the only judge to which she had any connection—namely, they both served on the faculty of Harvard Law School, she as a tenured professor and he as a tenured professor before he joined the bench and as a visiting professor on occasion since then. Judges, however, serve on the faculty of schools all the time. Judge Boudin, who was on the three-judge panel, served for eight years as a lecturer at Harvard while he was on the bench in the 1990s. He is also married to Harvard Law Professor Martha Field. Judge Jeffrey Sutton annually teaches a course at Harvard during the January term, as does Judge Thomas Griffith. And many other federal judges across the country teach at nearby law schools, such as Columbia, Berkeley, and the University of Chicago. And many professors moonlight as advocates. To suggest that judges cannot teach or that professors cannot advocate because of the potential disqualification of a litigant’s attorney of choice would deprive students of valuable learning experiences and litigants of skilled advocates.
Like in the many other cases applying 28 U.S.C. § 455, it is always the judge’s participation in the case that is in question, not the attorney’s. This is important not only because it is what the statute mandates, but also because the Supreme Court has said that having access to the counsel of one’s choice is an important right in American litigation. In the criminal context, wrongful denial of a defendant’s counsel of choice is a structural error not subject to the harmless error doctrine. Although there is more at stake during a criminal proceeding and the Sixth Amendment expressly applies to the criminal, not civil, context, the importance of having access to counsel of the litigant’s choice has been recognized elsewhere. Congress created such a statutory right for immigration proceedings. And an Air Force regulation creates a right for airmen to consult with counsel before certain involuntary separation proceedings. Although none of this grants Doe a clear right to the counsel of his choice in this civil context, it does suggest that, before a judge inverts the standard recusal posture, the judge should give a reasoned explanation for doing so.