THE ETHICS OF REPRESENTING DEBTORS AND CREDITORS IN BANKRUPTCY

bankruptcy case as an umbrella under which a number of distinct, varied controversies are resolved.⁵³⁶ The relationship of the judge to a creditor or an attorney in the case may disqualify the judge from handling litigation involving that creditor or attorney, but require disqualification from the entire case only if that creditor or attorney took a substantial and ongoing role in the overall case.⁵³⁷

1. The standard for disqualification under the non-specific provisions of § 455(a) is an objective one, determined by what a reasonable person knowing all the relevant facts would think about the impartiality of the judge rather than what the judge estimates to be his own ability to impartially hear a case.⁵³⁸ A reasonable, factual basis to doubt the impartiality or fairness of the judge must be shown by some kind of probative evidence, generally through testimony and affidavits.⁵³⁹ In some cases the court has conducted a hearing on the facts; in other cases the court has assumed for purposes of judicial recusal only that allegations contained in affidavits in support of the disqualification motion are true.⁵⁴⁰
2. In most circuits, a judge's adverse ruling during the course of a case or proceeding is not "reasonable" grounds for recusal; disqualification must stem from an extrajudicial source, not information gained in the course of the proceeding.⁵⁴¹ Nor is an apparent antagonism by the judge towards an attorney grounds for recusal.⁵⁴² Prior acquaintance with, experience litigating against, or even former partnership with counsel for one of the parties is not per se disqualifying, nor is the fact that one counsel is a judge's former clerk or even a friend.⁵⁴³
3. Under most circumstances, a motion to disqualify is heard by the challenged judge. There are a number of reported decisions where the motion to disqualify was transferred to a different judge for decision.⁵⁴⁴
4. Several factors have been applied by the courts in determining whether violations of the disqualification statute require orders to be set aside, or whether the error is harmless: (1) the risk of injustice to the parties in the particular case; (2) the risk that the denial of relief will produce injustice in other cases; and (3) the risk of undermining the public's confidence in the judicial process.⁵⁴⁵ In evaluating these factors, courts have considered the timing of