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Two 4th Circuit Judges Heard Cases Despite Conflicts

By William Peacock, Esq. on May 01, 2014 | Last updated on March 21, 2019

Conflicts and recusals. We've given the High Court's justices a hard time over botched recusals, excessive recusals, and even for un-recusals, but what about judges in the lower courts?

Federal judges are required to recuse themselves if they have a conflict of interest, often due to stock ownership in a company that is a party to the case, and they're even granted a tax break if they sell the stock to remove the conflict. Courts have adopted conflict screening systems to make sure mandated recusals actually happen.

Yet sometimes, a case or a stock slips through the cracks. How? And just as important, how many?

How? A Self-Reporting System

In 2006, the Judicial Conference of the United States adopted a mandatory automated conflict screening policy. The policy required courts to adopt automated systems that screen parties to cases, their corporate parents, and judges' investments for conflicts.

The Fourth Circuit adopted such a plan [PDF], but it has a weak link: judges have to self-report their personal and fiduciary financial interests, keep their interests list updated, and have to review flagged conflicts as they arise. 

How Many? 26 Nationally, 5 Cases in the Fourth Circuit

The Center for Public Integrity reviewed the three most recent years of financial disclosure reports filed by federal judges on the appellate court level. Out of 255 judges who filed reports, over three years, and thirteen circuits, the Center located 24 conflicts involving stock ownership, as well as 2 instances where financial ties to a law firm created a conflict.

It's not a disturbingly high error rate, considering the massive volume of cases that go through our appellate system.

Locally, two judges' errors led to five conflicts: three for Judge Allyson Duncan and two for Judge Barbara Keenan.

For Judge Duncan, her fiduciary financial interest conflicts stemmed from serving as the executor of a relative's estate. The relative's stock portfolio was in the process of being liquidated, but at the time of the cases, the estate still owned stock in Verizon and General Electric. The court has issued letters to the parties in the following cases, outlining the conflict:

As for Judge Keenan, her personal financial interest was $1900 in stock ownership in Wells Fargo, leading to letters in these cases:

The letters notify the parties of the conflict, and invite them to seek relief if they think any is warranted. A court, without the conflicted judge, will evaluate the request.

It seems unlikely that any of these cases will be reversed, however, as all five were unanimous per curium unpublished decisions, and an ethics opinion, attached to each letter, notes that even if one judge was conflicted, that conflict isn't imputed onto the remaining two. In other words, even if the conflicted judge had held the other way, it'd still be a 2-1 decision. Basically, it's harmless error.

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