New Proposed Rule Could Create Recusal Headaches for Federal Judges: The Morning Minute

ALL TOGETHER NOW  - There’s no such thing as social distancing when it comes to law firms getting together. While large firm combinations have continued at a slower pace, Law.com’s Andrew Maloney reports that a slew of small, midsize and regional firms are kicking off 2022 with growth, expansion or merger deals. Meanwhile, a handful of pending combinations could be a harbinger of the industry’s commitment to getting large deals done in spite of the latest COVID-19 surge. Lisa Smith, a law firm consultant and principal at Fairfax, told Maloney on Tuesday that optimism remains that the Omicron-fueled surge in COVID-19 cases in the U.S. will peak quickly. The surge will affect merger activity, but Smith expects more law firm deals in 2022. “A year ago we were pretty optimistic that 2021 would see a rebound, so I’m a little reluctant to predict at this point. But I think that we’ll see more combinations in 2022,” Smith said. “I’m not sure we’ll get up to the historical average—the levels in the period of time pre-pandemic—this year, just because I think we’re going to see some of those logistical challenges. So it’ll be a little slow as a result, but I think it’ll be a little higher than we saw in 2020 and 2021.”

FROM BENCH TO BENCHED - Members of the federal Committee on Rules of Practice and Procedure on Tuesday warned that a proposed rule change that would require amicus filers to more broadly disclose financial ties to parties, and in particular nonparties, could lead to dicey recusal issues for judges, Law.com’s Avalon Zoppo reports. Robert Giuffra, a Sullivan & Cromwell partner, worried an overbroad disclosure rule could create unnecessary headaches for judges in situations where financial ties between a nonparty contributing to an amici and a judge are uncovered. “If it was the American Bankers Association [as amici], it could be dozens and dozens of banks … any judge that owns a bank stock would suddenly have a problem,” Giuffra said. But Judge Patricia Millett, of the U.S. Court of Appeals for the D.C. Circuit, said a broad rule would help judges know when they have a conflict of interest. (And it should be noted that there 131 federal judges who can likely attest that, when it comes to such conflicts, ignorance is not bliss.) Meanwhile, Millett also pointed out that several federal courts have rules allowing courts to bar amicus briefs that would otherwise require judges to recuse.