
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-8042                                        IN RE                                    CARGILL, INC.,                                     Petitioner.                              _________________________                ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES                       DISTRICT COURT FOR THE DISTRICT OF MAINE                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Bernhardt K.  Wruble, with whom William  R. Sherman, Verner,               ____________________            ___________________  _______          Liipfert, Bernhard, McPherson and Hand, Peter J. DeTroy, III  and          ______________________________________  ____________________          Norman, Hanson & DeTroy were on brief, for petitioner.          _______________________               Joel C. Martin, with whom Michael K. Martin, Daniel W. Bates               ______________            _________________  _______________          and Petruccelli & Martin were on brief, for plaintiffs.              ____________________                              _________________________                                   October 10, 1995                              _________________________                    SELYA,   Circuit  Judge.    Petitioner,  Cargill,  Inc.                    SELYA,   Circuit  Judge.                             ______________          (Cargill),  seeks a  writ of  mandamus directing  a judge  of the          United  States  District  Court  for  the  District  of Maine  to          withdraw a decision  previously issued and then to recuse himself          from further  proceedings  in the  underlying  cause.1   For  the          reasons that follow, we decline to issue a prerogative writ.          I.  BACKGROUND          I.  BACKGROUND                    The  petition arises out  of a civil  action brought by          several former Cargill employees,  represented by Daniel W. Bates          and Kenneth D. Keating  of Petruccelli & Martin (P&M),  an eight-          lawyer  firm  in Portland,  Maine.    The complaint  invokes  the          Robinson-Patman  Act, 15 U.S.C.    13-13b  (1988), and alleges in          substance that Cargill  discharged the plaintiffs  in retaliation          for  their  unwillingness  to  abide  certain  predatory  pricing          practices.   Cargill  retained a  Washington-based firm,  Verner,          Liipfert, Bernhard,  McPherson, and  Hand (Verner,  Liipfert), as          lead  counsel, and  a  Portland firm,  Pierce, Atwood,  Scribner,          Allen, Smith,  and Lancaster (Pierce, Atwood),  as local counsel.          It  then  moved  to dismiss  on  the  basis  that the  plaintiffs          experienced no antitrust  injury and, therefore,  lacked standing                                        ____________________               1Petitioner  premises his  argument on  the ground  that the          judge's  impartiality  might  reasonably  be  questioned.     The          relevant statute provides:                    Any  justice,  judge,  or magistrate  of  the                    United States shall disqualify himself in any                    proceeding  in  which his  impartiality might                    reasonably be questioned.          28 U.S.C.   455(a) (1988).                                          2          to maintain the action.                    On  December  19,  1993,  while  Cargill's  motion  was          pending before him, the district judge to whom  the case had been          randomly  assigned  became  embroiled  in  what  he  subsequently          described as a "minor controversy"  relating to his efforts,  and          those of his wife, to purchase  a new home.  The judge telephoned          Gerald Petruccelli, a  principal partner in  P&M, and sought  his          advice  anent the real estate dispute.  Petruccelli agreed to the          proposed representation, telling the  judge that he (Petruccelli)          knew of "no impediment" to the relationship.                    On  December 21, the two  men met for  about 50 minutes          and  discussed  the judge's  real estate  problem.   A  series of          telephone  conversations followed  over  the course  of the  next          eight days.   None lasted  more than five  minutes.   Petruccelli          dealt  directly with the lawyer who represented the other side in          the real estate  matter and, on January 6, 1994,  he resolved the          imbroglio to  the judge's  satisfaction.  Petruccelli  rendered a          bill, dated  January 7, based on  his standard hourly  rate.  The          judge paid  the invoice within the  week.  It is  undisputed that          Petruccelli never represented  the judge in any  other matter and          that  the judge dealt only  with Petruccelli (not  with any other          P&M attorney).                    The  judge  maintains  that,  at the  time  he  engaged          counsel, he had "no  conscious awareness that Mr. Petruccelli  or          his firm were involved in this  specific litigation then pending"                                          3          before  him.2   Nonetheless,  a few  days  after he  had retained          Petruccelli,  the  judge asked  his  docket  clerk to  check  his          calendar for pending cases in which P&M might have appeared.  The          clerk  brought two such cases  to the judge's  attention at about          the  time that the  attorney-client relationship  ended.   One of          these was the case against Cargill.  Although Petruccelli himself          had played no role in P&M's representation of the plaintiffs, the          judge decided  that  he  had  best  disclose  his  dealings  with          Petruccelli.                    On  January  11,  the  clerk,  acting  at  the  judge's          direction, notified local  counsel to attend a  conference on the          following day.  The disclosure conference (a transcript  of which          comprises the appendix)  proved to be brief.  Attorneys Bates and          Keating appeared  for the  plaintiffs, and Attorneys  O'Leary and          Einsiedler (both of Pierce,  Atwood) appeared for Cargill.   When          advised of the  attorney-client relationship between  Petruccelli          and  the judge, both  Bates and O'Leary  quickly volunteered that          their  respective  clients  had   no  objection  to  the  judge's          continued  participation in the case.  The judge then advised the          lawyers that  he was grappling  with Cargill's motion  to dismiss          which, in his view, "raise[d] some very interesting and difficult          questions."    He forecast  that he  would  hand down  a decision                                        ____________________               2This  declaration,  and other  declarations  reflecting the          judge's  state  of  mind, are  extracted  from  the  record of  a          conference held  in this case  (reprinted in the  appendix), from          the judge's notice  to counsel  (described infra),  and from  the                                                     _____          order  denying Cargill's  recusal  motion.   For  the most  part,          petitioner has not challenged the factual accuracy of the judge's          statements.                                          4          "within a week or so."                    Precisely one  week thereafter, the judge  issued a 39-          page rescript  denying Cargill's motion  to dismiss.   While  the          judge closed his chambers and released his staff on holiday leave          from  December 24, 1993  through January  3, 1994,  he admittedly          labored  over the matter during  some portion of  the period when          Petruccelli represented him.                    The  filing  of  the   opinion  elicited  no  immediate          response.   Several  weeks  later, however,  Bernhardt Wruble,  a          Verner, Liipfert  partner, wrote a letter to  the court asserting          that,  because  "a  judge's  contemporaneous   representation  by          opposing counsel is uniformly regarded as a basis  for obligatory          disqualification,"  the judge  should withdraw his  order denying          the motion to dismiss, relieve himself of  all responsibility for          the  case, and reassign it  to another jurist.   Anticipating the          predictable  reaction  to  this  demand,  Wruble  suggested  that          Pierce,  Atwood's acquiescence  was of  no  moment.   Since local          counsel  lacked prior  notice of  the purpose  of the  January 12          conference and,  hence, had no opportunity to  consult in advance          with either the client  or lead counsel, Wruble wrote,  the judge          had  not  afforded petitioner  "adequate  time  for a  considered          response" to the disclosure.  Thus, there could be no "effective"          waiver.                     The judge did no fewer than three things upon receiving          Wruble's  communique.   First,  he postponed  a scheduled  status          conference in the case.  Second, he directed any party who sought                                          5          his recusal  to file a formal  motion to that effect.   Third, he          composed  and served  a  statement, denominated  as  a notice  to          counsel, in which he  denied "that the Court required  a decision          on waiver of any objection to the Court's continued participation          to be made at the conference."  The judge explained that he meant          the disclosure conference to be informational in nature, that is,          "to  advise counsel  of  the circumstances  of Mr.  Petruccelli's          representation and  afford counsel an opportunity  to confer with          clients and other counsel  to decide whether they wanted  to move          for recusal or  request other action by  the court."   But, wrote          the judge, though  he intended to  give counsel  a full month  in          which to advise him  of their clients' positions with  respect to          the  disclosed  matter    and,  with  this  in  mind, thought  it          sensible  to   summon  only  local  counsel   to  the  disclosure          conference    he did not do so because, immediately following his          revelation, both  counsel, acting  for their  respective clients,          spontaneously  disclaimed   any   objection  to   his   continued          participation in the case.                    On February 25, 1994,  Cargill asked the district court          to certify for interlocutory appeal  the January 19 order denying          the  motion to  dismiss.    See  28  U.S.C.     1292(b)  (1988).3                                      ___          Roughly two  weeks later,  Cargill moved for  recusal, proffering          several affidavits.   Cargill's  motion, like Wruble's  letter of          February  13, made it clear  that Cargill's position  rested on a                                        ____________________               3The   district  court   eventually   denied  this   motion.          Petitioner  does not  assign error  to the  denial, nor  could it          rewardingly do so.                                          6          supposed  appearance of  impropriety, that  is, the  existence of          circumstances  in   which  Cargill  believed  that   the  judge's          impartiality might  reasonably be questioned.   See  28 U.S.C.                                                             ___          455(a),  quoted supra note 1.   Cargill did  not advance, then or                          _____          now,  any claim  of  actual bias.    The plaintiffs  opposed  the          recusal  motion.   In their  opposition, they made  two principal          arguments:   (1) Petruccelli's  representation did not  create an          appearance of  impropriety  within the  meaning  of 28  U.S.C.             455(a), and, in any  event, (2) Cargill had waived  any objection          to  the  judge's continuing  role in  the  case.   The plaintiffs          hinged the latter  contention on  28 U.S.C.    455(e), a  statute          that  specifically permits a judge to  accept the parties' waiver          of   a  section   455(a)  appearance-of-impropriety   ground  for          disqualification as long  as the  waiver "is preceded  by a  full          disclosure on the record of the basis for disqualification."                    On May 12, 1994, the district  court denied the recusal          motion.  Cargill subsequently filed its mandamus petition in this          court.   We  invited the  plaintiffs to  respond, set  a briefing          schedule, and entertained oral argument.          II.  THE NATURE OF MANDAMUS          II.  THE NATURE OF MANDAMUS                    Federal  appellate   courts  are  empowered   to  issue          prerogative writs that  are "necessary or  appropriate in aid  of          their  respective  jurisdictions" under  the  All  Writs Act,  28          U.S.C.     1651(a)  (1988).    Because  such  writs  disrupt  the          mechanics  of the  judicial  system    by accelerating  appellate          intervention,  prerogative  writs  foster  piecemeal  review  and                                          7          disturb  the historic  relationship between  trial and  appellate          courts   they should "be used stintingly and brought to bear only          in  extraordinary  situations."    Doughty   v.  Underwriters  at                                             _______       ________________          Lloyd's,  London, 6 F.3d 856,  865 (1st Cir.  1993).  Mandamus is          ________________          such  a writ.    It is  strong medicine,  and  should neither  be          prescribed casually nor dispensed freely.                    Consistent  with  these principles,  the  standards for          issuance of the  writ are  high.  A  petitioner seeking  mandamus          must show both  that there is  a clear entitlement to  the relief          requested,  and that  irreparable harm will  likely occur  if the          writ is  withheld.  See United  States v. Horn, 29  F.3d 754, 769                              ___ ______________    ____          (1st Cir. 1994); Doughty, 6 F.3d  at 866; In re Pearson, 990 F.2d                           _______                  _____________          653,  657 & n.4 (1st Cir. 1993).   Sometimes, even these specific          showings are not enough to justify a court's  use of its mandamus          power.   In  the  final  analysis,  a  writ  of  mandamus  is  an          exceptional remedy and "is to be  granted only in the exercise of          sound discretion."  Whitehouse v. Illinois Cent. R. Co., 349 U.S.                              __________    _____________________          366, 373 (1955).   In  this context, equity  informs the  court's          discretion.  See Kerr v. United States Dist. Court, 426 U.S. 394,                       ___ ____    _________________________          403 (1976); United States v. Helvering, 301 U.S. 540, 543 (1937);                      _____________    _________          United States v.  Dern, 289 U.S. 352, 359 (1933); Doughty, 6 F.3d          _____________     ____                            _______          at 866; United States  v. Patterson, 882 F.2d 595, 600  (1st Cir.                  _____________     _________          1989), cert. denied, 493 U.S. 1027 (1990); In re First Fed.  Sav.                 _____ ______                        ______________________          & Loan Ass'n, 860 F.2d 135, 139-40 (4th Cir. 1988); Vishnevsky v.          ____________                                        __________          United States, 581 F.2d 1249, 1255 (7th Cir. 1978).          _____________                    We  have held that, in an appropriate case, an issue of                                          8          judicial    disqualification    may   present    a   sufficiently          extraordinary  situation  to  justify   the  unsheathing  of  our          mandamus power.  See In re Allied-Signal, Inc., 891 F.2d 967, 969                           ___ _________________________          (1st Cir. 1989), cert. denied, 495 U.S. 957 (1990); In re Cooper,                           _____ ______                       ____________          821 F.2d  833, 834 (1st Cir. 1987); In re United States, 666 F.2d                                              ___________________          690, 694 (1st Cir.  1981); see also In re  International Business                                     ___ ____ _____________________________          Mach. Corp.,  618 F.2d  923, 927  (2d Cir. 1980).   However,  the          ___________          usual  prerequisites to mandamus relief   a showing of both clear          entitlement to the requested  relief and irreparable harm without          it, accompanied by a favorable balance  of the equities   do  not          vanish  merely because judicial  disqualification is the business          of the day.   See, e.g., Allied-Signal, 891  F.2d at 969; Cooper,                        ___  ____  _____________                    ______          821 F.2d at 834; In re United States, 666 F.2d at  694.  In other                           ___________________          words, the mere fact that a petition for  mandamus is directed at          securing  the trial  judge's  removal does  not  ensure that  the          higher court will entertain the petition.          III.  DISCUSSION          III.  DISCUSSION                    After careful perscrutation of the record,  we conclude          that  petitioner's  quest  for  mandamus  should  go  unrequited.          Cargill has  shown neither  that it  is clearly  and indisputably          entitled to  the writ  nor that it  faces an intolerable  risk of          irreparable harm should it be forced to await appellate review in          the ordinary course.  Moreover, Cargill's failure  to take timely          action,  after  learning  of  the judge's  disclosure  and  Maine          counsel's ensuing waiver of objection, tips the equitable balance          and argues persuasively against issuance of the writ.                                          9                                          A                                          A                    We  turn first  to  the matter  of  entitlement to  the          relief  requested.     Assuming,  arguendo,   that  the   judge's                                            ________          relationship   with  Petruccelli   created   an   appearance   of          impropriety  adequate to animate  section 455(a)    and  we think          that  it probably  did4    Cargill's entitlement  to an  order of          disqualification remains questionable.  Regardless of whether the          actions of its local counsel effected a fully valid waiver of the          disqualifying circumstance,  the silence of Cargill  and its lead          counsel  after learning  what had transpired  may very  well have          added  the missing  element, ratified  the waiver,  and given  it          life.  We elucidate below.                    The relevant  statute,  28  U.S.C.     455(e),  plainly          contemplates that  a party may waive an appearance-of-impropriety          ground for  disqualification.  The statute itself does not define                                        ____________________               4The  disqualification  requirement  of  section  455(a)  is          triggered, despite the  lack of  any actual bias  on the  judge's          part,  if a  reasonable  person, knowing  all the  circumstances,          would question the judge's impartiality.  See Liljeberg v. Health                                                    ___ _________    ______          Servs. Acquisition  Corp., 486  U.S.  847, 861-62  (1988).   Most          _________________________          observers would agree that a judge should not  hear a case argued          by an  attorney who, at the same  time, is representing the judge          in  a personal matter.   See 13A Charles  Wright & Arthur Miller,                                   ___          Federal  Practice and  Procedure    1349,  at 614  (1984) (citing          ________________________________          cases).  Although the appearance of partiality is attenuated when          the lawyer appearing before the judge is a member of the same law          firm  as  the   judge's  personal  counsel,  but   not  the  same          individual, many  of  the same  cautionary factors  are still  in          play.  See,  e.g., 2  Administrative Office of  the U.S.  Courts,                 ___   ____          Guide   to   Judiciary  Policies   and  Procedures   V-32  (1995)          __________________________________________________          (expressing the  view that "where an attorney-client relationship          exists between the judge and the lawyer whose law firm appears in          the case,  the  judge  should  recuse absent  remittal").    This          principle would seem to have particular force where, as here, the          law firm is small and the judge's lawyer is a name partner.                                          10          the form or  prerequisites of such a waiver;  it only imposes the          condition  that the waiver be  "preceded by a  full disclosure on          the  record  of the  basis for  disqualification."   28  U.S.C.            455(e).   The transcript of  the January 12  conference leaves no          doubt that  such a disclosure occurred.   The judge laid  out the          nature  of his  relationship  with Petruccelli,  citing book  and          verse.    This disclosure  was  then followed  by  an unequivocal          statement on  the part  of Cargill's counsel,  unprompted by  the          court, to  the effect that Cargill did  not object to the judge's          continued service  in the  case.   Local  counsel reported  these          developments to  lead  counsel immediately  after the  conference          ended, and Verner, Liipfert in turn promptly informed the client.          Yet, for nearly a month thereafter, Cargill failed to express any          discomfiture with the waiver.                    Although  we  leave  the  ultimate  question  open  for          resolution  on  an  end-of-case   appeal,  we  think  that  local          counsel's unqualified assent, combined with  Cargill's subsequent          silence  for  a substantial  period  of  time, creates  a  sturdy          foundation  on which the validity  of the waiver  might rest, and          that the resultant uncertainty  undercuts Cargill's claim that it          is plainly entitled  to the requested relief.   After all,  it is          common ground that  civil litigants ordinarily are bound by their          attorneys' tactical  judgments, see,  e.g., Brody v.  President &                                          ___   ____  _____     ___________          Fellows  of  Harvard  Coll., 664  F.2d  10,  12  (1st Cir.  1981)          ___________________________          (holding, on particular facts,  that client would not  be allowed          "to  second guess his attorney's waiver"), cert. denied, 455 U.S.                                                     _____ ______                                          11          1027 (1982), and waivers based on silence are standard fare, see,                                                                       ___          e.g., United States v.  Nobel, 696 F.2d 231,  237 (3d Cir.  1982)          ____  _____________     _____          (finding waiver under   455(e) based on party's failure to make a          timely objection  once the  basis for disqualification  was fully          disclosed), cert. denied, 462 U.S. 1118 (1983).                      _____ ______                    However, Cargill asseverates that no valid waiver could          be given  by its Maine counsel because the judge failed to follow          exactly  the  procedures  governing  waivers  of disqualification          dictated by the Code of Conduct for United States Judges (CCUSJ),          adopted by the Judicial Conference of the United States following          promulgation  by  the  American  Bar  Association.    See  CCUSJ,                                                                ___          reprinted in 150 F.R.D. 307 (1992).  Canon 3D of the CCUSJ allows          _________ __          a judge to hear a case if  the parties and their lawyers agree to          the  judge's  continued  service  not only  after  disclosure  of          certain  bases  for  disqualification  (including  appearance  of          impropriety), but also after having been afforded "an opportunity          to confer  outside the presence  of the  judge[.]"   Id. at  313.                                                               ___          Here, what transpired at the  disclosure conference met the first          requirement of Canon 3D, but not the second.                    However,   even  if   we  assume  arguendo   that  this                                                      ________          noncompliance rendered the  original waiver ineffective,5 counsel                                        ____________________               5Although  we need not decide the point, we doubt that every          instance of noncompliance with  the CCUSJ automatically justifies          post-hoc invalidation  of a waiver that otherwise  meets the test          of section 455(e).  Certainly, the  case law on the point is less          than transpicuously clear.   See,  e.g., Nobel, 696  F.2d at  237                                       ___   ____  _____          (explaining that "it is sufficient under  [section 455(e)] if the          judge  provides full disclosure of  his or her  relationship at a          time early  enough to form  the basis  of a timely  motion at  or          before  trial  and under  circumstances  which  avoid any  subtle                                          12          thereafter  had  ample  opportunity  for  consultation  with  the          client, outside the  presence of the judge,  yet Cargill, knowing          of the  stated  waiver, did  not alter  its position.   When  the          judge's  departure from the CCUSJ is weighed in the balance along          with his explanation and  Cargill's knowing acquiescence in local          counsel's express waiver, the call seems to us to be quite close.          This closeness  sets a  chain reaction  in motion.   It leads  us          first   to  conclude  that  the  contested  waiver  may  well  be          enforceable, and constitutes, at the least, a potential stumbling          block  on  the  road to  recusal.    The  first conclusion  leads          inexorably to a second conclusion:  that petitioner has failed in          its endeavor to demonstrate that it is "clearly and indisputably"          entitled to the relief that it seeks.                    To be sure, Cargill has  attempted to explain away  its          apparent ratification  of the position taken by its local counsel          both  factually  (through a  series  of  affidavits) and  legally          (through  its insistence  on literal  compliance with  Canon 3D).          Its factual explanations and  legal theories may or may  not hold          water in the long run,  but that is scarcely the point.   We need          not   and  do not   decide the  merits of the waiver  question at          this juncture.  It  suffices for present purposes merely  to note                                        ____________________          coercion"); Haire  v.  Cook, 229  S.E.2d 436,  438-39 (Ga.  1976)                      _____      ____          (similar;  construing Georgia  law); Commonwealth v.  Cagney, 329                                               ____________     ______          N.E.2d 778, 781 (Mass.  1975) (Goodman, J., concurring) (similar;          construing Massachusetts law).  Notwithstanding the importance we          attach  to  the CCUSJ  and the  obvious desirability  of assuring          judicial  compliance with the canons, we  think a strong argument          can  be made  that not  all instances  of noncompliance  with the          CCUSJ are automatic disqualifiers.                                          13          that the issue is sufficiently clouded that petitioner's eventual          entitlement  to  the requested  redress     the district  judge's          recusal   is  problematic.6  See Pearson, 990 F.2d  at 656 & n.4;                                       ___ _______          Cooper, 821 F.2d at 834.          ______                                          B                                          B                    Petitioner suggests that recusal  of a judge presents a          special  circumstance  which,  even   in  the  absence  of  clear          entitlement  to  the  requested  relief,  warrants  interlocutory          review  by way  of  mandamus.   This  suggestion is  not  without          force.7  In cases in which  parties have sought recusal based  on          assertions  of actual  bias, we  have stated  that "the  issue of          judicial  disqualification  presents  an extraordinary  situation          suitable for the exercise  of our mandamus jurisdiction."   In re                                                                      _____          United States, 666 F.2d at 694.          _____________                                        ____________________               6Because we  find no  clear and indisputable  entitlement to          the  requested  relief,  we  need not  consider  whether  Cargill          satisfied  the second prong of the  mandamus test by a showing of          irreparable  harm.   We  note,  however, that  although  there is          always some harm  in litigating for nought,  that harm repeatedly          has  been  held  insufficient,  in itself,  to  justify  mandamus          relief.  See,  e.g., In re Bushkin Assocs., 864  F.2d 241, 243-44                   ___   ____  _____________________          (1st Cir. 1989).               7In  the same vein, however, we can envision cases in which,          despite  a   showing  that  ordinarily  would   amount  to  clear          entitlement,  a  litigant  has   acted  so  deplorably  that  the          petitioned court  might choose to withhold  discretionary relief.          See  generally  Precision  Instrument  Mfg. Co.  v.    Automotive          ___  _________  _______________________________      ____________          Maintenance Mach. Co., 324 U.S. 806, 814  (1945) (explaining that          _____________________          the  doctrine of  unclean hands "closes  the doors of  a court of          equity to  one tainted with inequitableness or bad faith relative          to the matter  in which  he seeks relief");  Texaco Puerto  Rico,                                                       ____________________          Inc. v. Department  of Consumer  Affairs, 60 F.3d  867, 880  (1st          ____    ________________________________          Cir. 1995)  ("It is old hat that a court called upon to do equity          should always consider whether the petitioning party has acted in          bad faith or with unclean hands.").                                          14                    Our rationale  in these  cases has been  that "[p]ublic          confidence  in the  courts may  require that  such a  question be          disposed of at the  earliest possible opportunity."  In  re Union                                                               ____________          Leader Corp., 292  F.2d 381,  384 (1st Cir.),  cert. denied,  368          ____________                                   _____ ______          U.S. 927 (1961).  However, we have cautioned that this philosophy          does not "commit us  to entertaining every rejected affidavit  of          prejudice," and  we have made it clear that, even when a mandamus          petition  seeks a judge's recusal based on an assertion of actual          bias,  mandamus remains "a discretionary writ."  Id.  Because its                                                           ___          origins  are equitable in nature, the writ should issue to remedy          a wrong, not to  promote one   and it  should not "be granted  in          aid of  those  who do  not  come into  court  with clean  hands."          United States v. Fisher, 222 U.S. 204, 209 (1911).          _____________    ______                    In  this  case,  principles of  equity  caution against          exercising discretion to reach out for the disqualification issue          here and now.   To explain  why, we must  remind the reader  that          mandamus is a potent weapon.  Precisely because the  writ packs a          considerable wallop, litigants are sometimes tempted to employ it          for its strategic value, regardless of the merits of their cause.          See  Allied-Signal, 891 F.2d at 970; In re Drexel Burnham Lambert          ___  _____________                   ____________________________          Inc.,  861 F.2d 1307, 1312-16  (2d Cir. 1988),  cert. denied, 490          ____                                            _____ ______          U.S.  1102 (1989).   Ignoring  this possibility  when, as  now, a          petition  for  mandamus seeks  the  disqualification  of a  judge          shortly  after the  judge  decides  a  major  point  against  the          petitioner would be to blink reality.  In the real world, recusal          motions are  sometimes driven more by  litigation strategies than                                          15          by ethical concerns.                    In such straitened  circumstances, appellate  tribunals          must  be especially alert to the dangers of manipulation.  Courts          can  ill afford  to permit  mandamus to  be used  as a  tactic to          jettison an impartial judge  whose slant on a case,  as evidenced          by  his  rulings,  jeopardizes  a party's  chances  for  ultimate          success.  See In re United Shoe Mach. Corp., 276 F.2d 77, 79 (1st                    ___ _____________________________          Cir. 1960)  ("We cannot permit a litigant to test the mind of the          trial judge like  a boy testing  the temperature of the  water in          the pool with  his toe, and  if found to  his liking, decides  to          take a plunge.") (citation and internal quotation marks omitted);          cf. Reilly v. United  States, 863 F.2d  149, 160 (1st Cir.  1988)          ___ ______    ______________          (explaining that "when  a trial judge announces a proposed course          of  action which litigants  believe to be  erroneous, the parties          detrimentally affected  must act expeditiously to  call the error          to  the judge's attention or to cure  the defect, not lurk in the          bushes waiting  to ask  for another trial  when their  litigatory          milk curdles").  By like  token, courts cannot afford to  spawn a          public  perception that  lawyers  and litigants  will benefit  by          undertaking such machinations.                    This  case runs  up just  such a  red flag.   While the          record does not  compel a  finding that petitioner  and its  lead          attorneys delayed  any attempt to retract  Maine counsel's waiver          as part of  a plot to await the results  of the judge's impending          decision,  the  chronology is  suggestive.    The scenario  lends          itself to the following description:  Cargill, armed with all the                                          16          relevant  facts no  later than  January 14  and knowing  that the          judge planned to  decide the  key motion in  the case during  the          following   week,8   held  its   "appearance-of-impropriety"  and          "invalid  waiver"  arguments  in  reserve,  deferred any  recusal          initiative,  awaited the ruling  on the motion  to dismiss, found          that ruling  to be  greatly disappointing,  and  then pulled  the          recusal  option off  the  shelf  in  hopes  of  locating  a  more          sympathetic trier.                    Of  course,  Verner,   Liipfert  tries  strenuously  to          explain away this  chain of  events.  The  firm's attorneys  have          regaled us with descriptions of  both their busy travel schedules          and the inclement weather that struck the nation's capitol during          January of 1994.   But even if  we were to take  these excuses at          face  value, they are simply not sufficient to justify the firm's          decision to sit silently by until the judge had showed his hand.                    We believe  it is  self-evident that, once  Cargill was          aware of the details surrounding  Petruccelli's relationship with          the judge, it  should at a bare minimum have  told the court that          it  wanted time to rethink its options  and sought a delay in the          issuance of the court's  opinion (which it knew to  be imminent).          In all probability,  it would have taken no more than a telephone                                        ____________________               8The various  affidavits submitted by the  petitioner to the                                                  __________________          district court  establish that on Wednesday, January 12, the very          day  that  the disclosure  conference  was  held, Pierce,  Atwood          informed Verner,  Liipfert of what had  transpired, including the          judge's plan to issue his decision in approximately one week.   A          corporate  official  was told  of  the  situation  no later  than          Friday, January 14.                                          17          call  or  a facsimile  transmission  to place  matters  on hold.9          Thus, putting the  most favorable  face on the  situation, it  is          apparent  that Cargill and its lead counsel neglected to act with          the immediacy that the circumstances obviously required.                    Our need  to exercise  discretion also demands  that we          take a related point into account.  The case at hand is different          than  our earlier precedents in several respects.  First, it does          not  involve a  claim of  actual bias,  and, thus,  it lacks  one          important  ingredient  that in  the  past  often prompted  us  to          undertake  review  of  judicial  disqualification orders  at  the          earliest  practicable time.  See  Union Leader, 292  F.2d at 384.                                       ___  ____________          When  issuing the writ is necessary  to promote public confidence          in  the courts by avoiding the unseemly spectacle of trial before          a biased judge, the need  for immediate relief is manifest.   See                                                                        ___          In re  United  States,  666 F.2d  at  694.   These  concerns  are          _____________________          lessened  where,  as  here,  there  is  neither  a  trace  nor  a          suggestion  of actual bias.  Second,  in this case, the party who          now claims  to be aggrieved earlier had made an express waiver of          the stated  ground for disqualification.  This,  too, changes the          calculus of public perception.                    Last,  but  far  from  least,  petitioner's  course  of          conduct    whether conniving or  merely slipshod   influences our          assessment of the equities.  Its handling of the matter places us                                        ____________________               9Cargill suggests that it  might have offended the  judge by          taking  such  action.    We  think  its  concerns are  overblown:          lawyers run such a  risk every time they seek  a judge's recusal.          In any event, trial advocacy is no sport for the timorous.                                          18          between  Scylla  and  Charybdis:   if  we  do  not entertain  the          petition, we run a risk of seeming hesitant to inquire too deeply          into a possible abuse of judicial power; yet, if we entertain the          petition despite  the appearance of sandbagging  that Cargill has          created, we run a risk of eroding public confidence in the courts          by seeming to reward a litigant for its gamesmanship.                    Given  the  fundamental nature  of  mandamus, declining          jurisdiction  in the  exercise of  our informed  discretion seems          preferable.  Though it  might be mere coincidence that  the delay          in  seeking to set aside the waiver worked to Cargill's advantage          by  allowing  it to  see which  way the  wind was  blowing before          deciding  whether  to  urge  recusal, the  appearance  of  judge-          shopping is  sufficiently pronounced  that  the equities  counsel          restraint.  See, e.g., Apple v. Jewish Hosp.  & Medical Ctr., 829                      ___  ____  _____    ____________________________          F.2d 326, 334 (2d Cir. 1987)  (noting that a "movant may not hold          back and wait, hedging  its bets against the  eventual outcome");          Phillips  v. Amoco Oil Co., 799  F.2d 1464, 1472 (11th Cir. 1986)          ________     _____________          ("Counsel,  knowing  the facts  claimed  to  support a     455(a)          recusal for appearance of partiality may not lie in wait, raising          the  recusal issue only after  learning of the  court's ruling on          the merits."), cert.  denied, 481  U.S. 1016 (1987).   We  simply                         _____  ______          cannot  afford to nourish the  impression that the  courts, as an          institution, will  bend over backward, overlook  the obvious, and          countenance sharp tactics merely  because they are directed at  a          judge.          IV.  CONCLUSION          IV.  CONCLUSION                                          19                    We  need go no further.  Petitioner has neither met the          conventional requirements  for mandamus  relief nor  satisfied us          that,  in the  unique  circumstances of  this case,  the equities          favor an  affirmative exercise of our  discretion.  Consequently,          we  deny the petition,  without prejudice  to Cargill's  right to          raise its  claim of error,  if it so  chooses, in  an end-of-case          appeal.10                    The petition for a writ of mandamus is denied.                    The petition for a writ of mandamus is denied.                    _____________________________________________                Appendix follows; dissenting opinion follows appendix                                          ____________________               10Just  as orders  disqualifying or  refusing to  disqualify          counsel  "can be  reviewed as  effectively on  appeal of  a final          judgment as on an interlocutory appeal," Richardson-Merrill, Inc.                                                   ________________________          v. Koller,  472 U.S. 424, 438 (1985), we see no reason why orders             ______          pertaining  to  judicial disqualification  cannot  be effectively          reviewed at that  time and in that manner.   Nor is this scenario          oddly  configured.  An end-of-case  appeal is a  matter of right,          while mandamus is a matter of discretion.  Courts have frequently          found  that difference  dispositive  in analogous  circumstances.          See, e.g., Allied  Chem. Corp. v. Daiflon, Inc.,  449 U.S. 33, 34          ___  ____  ___________________    _____________          (1980) (per curiam);  In re  Bushkin Assocs., 864  F.2d 241,  244                                ______________________          (1st Cir. 1989).   And, moreover, the fact  that a lengthy  trial          has intervened will not rob an appeal of its effectiveness.  See,                                                                       ___          e.g.,  Stauble  v. Warrob,  Inc., 977  F.2d  690 (1st  Cir. 1992)          ____   _______     _____________          (vacating  judgment  on  direct appeal  following  35-day  trial,          despite  the circuit court's earlier denial of mandamus relief on          the same ground).                                          20                                       APPENDIX                                       APPENDIX                                 CHAMBERS CONFERENCE                                 CHAMBERS CONFERENCE                                   January 12, 1994                                   January 12, 1994                    THE COURT:  This is  a very simple matter,  I                    THE COURT:                    think.     At   least  the  reason   for  the                    conference,  so  you  don't have  to  get all                    excited  about it,  is because  Mr. Bates  is                    counsel  in   this  matter   and  I   have  a                    disclosure that I must make to counsel.                    Approximately on December  19th, 1993,  while                    Mrs.  Carter  and I  were  in  the course  of                    looking  for   a  new  house,  I   got  in  a                    controversy  with a  party in  a contract,  a                    purchase and sale, a minor controversy.                    I, on  that date, called  Gerald Petruccelli,                    Mr. Bates's  partner, and  I asked him  if he                    could give me advice and perhaps represent me                    if it came to that.                    He called  me back on December  20th and said                    that he had  decided there was no  impediment                    to this representation of me.  I met with him                    on December 21 for about 45 to 50 minutes, we                                          21                    discussed  the matter.    I told  him that  I                    wanted a quick resolution - I should practice                    what I preach.                    I  had telephone  conferences with  him about                    the  matter on  December 22,  23, 28  and 29,                    four or  five minutes a piece.   I understand                    from  him that  he had  telephone conferences                    during  that  period  of  time  with  another                    attorney and on January 6th, 1994, the matter                    was resolved to my satisfaction.  On the 7th,                    Mr. Petruccelli  rendered to me  his bill and                    on the 10th, that bill was paid in full.                    The  understanding at  the conference  that I                    had with him on the 21st of December was that                    I  would  pay  the  usual   rate,  usual  fee                    computed at  the  usual hourly  rate for  the                    hours of  devotion to the case  that he would                    charge to any stranger off the street.  And I                    was  very serious  about that,  and  I'm sure                    that he was and I think the bill was entirely                    satisfactory one to me,  and I have no reason                    to  expect that it is to him.   So we have no                    kind of debt of any kind to each other out of                    this very brief transaction.                                          22                    I will tell you that I am morally certain  in                    my own  mind that this series  of events will                    not  in any way affect  my ability in the way                    I would find it  to be properly decided, even                    if the event had not occurred.                    However,   under  the  code,  the  canons  of                    judicial  conduct,  I felt  arguably perhaps,                    but  I  felt  that  it  was  proper,  perhaps                    required, but at least proper that I disclose                    it and see if anyone  has any objection in my                    continuing  to serve  as  the judge  who will                    ultimately decide this case.                    MR  BATES:   Speaking for  the plaintiff,  we                    MR  BATES:                    have absolutely no objection.                    THE  COURT:  The  record should  also reflect                    THE  COURT:                    that I  never had any  conversation with  Mr.                    Bates or  anyone  else of  Mr.  Petruccelli's                    office.                    MR. O'LEARY:  Speaking for the defense, there                    MR. O'LEARY:                    is no objection.                                          23                    THE  COURT:    I  wanted you  to  know  this.                    THE  COURT:                    That's all  I have.   We  have been  for some                    time  - I have been in  the course of dealing                    with   motions   which   raise    some   very                    interesting  and  difficult  questions and  I                    expect  that within a week or so I will be in                    a position to file a decision resolving that,                    so the  matter can  go forward.   I apologize                    having held the matter up that long but these                    are very tough  things, not matters of  first                    impression,  and  I  don't  have  a   lot  of                    guidance by better judges than I.                    MR. O'LEARY:  Thank you.                    MR. O'LEARY:                    MR. BATES:  We appreciate it.                    MR. BATES:                    THE  COURT:   Thank you  very much.   Another                    THE  COURT:                    matter, the Graffam, matter, is scheduled for                    trial, which  is in your office  on the other                    side, you might just talk with them about it,                    Bill  Kayatta,  apprise   him  of  what   has                    happened  and tell  him that  matter is  also                    scheduled for conference for the same purpose                    so he can have a chance to reflect on it.                                          24                    MR. BATES:   I don't know that  this needs to                    MR. BATES:                    be a part of  the record.  I know  that Gerry                    told  me  that  he  was going  to  call  Bill                    Kayatta, and did so.                    THE COURT:  Gerry  did call and tell me  that                    THE COURT:                    he had  called someone  to see if  that would                    create,  if  his representation  would create                    any problem  and I  didn't know what  case it                    was about or who  the lawyer was.  Ultimately                    he called  me back  and told  me that  he had                    found no impediment to his representation.                    MR. O'LEARY:  I appreciate the disclosure.                    MR. O'LEARY:                    [End of conference]                                          25                      CAMPBELL,   Senior  Circuit   Judge,  (dissenting).                                  _______________________            While  the question  is exceedingly  close,  I regret  that I            cannot  agree with the court.   The court's  opinion would be            persuasive if  written before the Judicial  Conference of the            United States had adopted Canon 3D of the Code of Conduct for                                                      ___________________            United States Judges.  But the court's opinion seems to me to            ____________________            pay  too little attention to  the district court's failure to            have observed the Canon.  Canon 3D provides,                      A  judge  disqualified  by the  terms  of                      Canon 3C(1), except in  the circumstances                      specifically set out  in subsections  (a)                      through (e) may,  instead of  withdrawing                      from  the  proceeding,  disclose  on  the                      record the basis of disqualification.  If                                                             __                      the parties and  their lawyers after such                      _________________________________________                      disclosure and an  opportunity to  confer                      _________________________________________                      outside of the presence of the judge, all                      ____________________________________                      agree in  writing or on  the record  that                      the judge should not be disqualified, and                      the judge is then willing to participate,                      the   judge   may   participate  in   the                      proceeding.    The  agreement   shall  be                      incorporated   in   the  record   of  the                      proceeding.  (emphasis added).            Canon 3D applies squarely  to the situation here, in  which a            judge  has  sought  the  parties'  waiver  of  his  mandatory            disqualification under   455(a).  Congress expressly allows a            judge  to accept  a waiver  of his  disqualification  under              455(a)  (appearance  of lack  of  impartiality) although  not            under   455(b) (bias,  personal knowledge of facts, financial            interest, etc.).  See 28 U.S.C.   455(e).  But while   455(e)                              ___            specifies no  more  than that such waiver  be preceded "by  a            full   disclosure   on   the   record  of   the   basis   for                                         -26-                                          26            disqualification," the  judiciary is also subject  to its own            Canon 3D  which imposes  additional conditions that  were not            followed  here.  For that reason, I disagree that the parties            ever effectively waived the duty imposed by   455(a) that the            judge disqualify himself.                        I  make two  points at  the outset.   First,  as my            colleagues seem  to concede,  the judge's employment,  as his            own   lawyer,  of  the   senior  partner  of   the  law  firm            representing  plaintiffs at  the  time he  was considering  a            major dispositive motion in plaintiffs' lawsuit, gave rise to            a  reasonable question  of his  impartiality under    455(a).            While this  was hardly a  major indiscretion as  such matters            go,  it  was  the  kind of  conduct  that  gives  rise to  an            appearance  of  impropriety.     Our  court  is  in  apparent            agreement  as to  the  applicability of    455(a).   However,            because the  district court  felt otherwise, and  because the            issue deserves  consideration, I  have stated my  reasons for            finding that   455(a) applies in an appendix to this dissent.            Section 455(a)  required the judge to  disqualify himself sua            sponte unless he received  and accepted an appropriate waiver            from the parties.                      A  second  point is  that  the  proceedings at  the            January  12 conference     at  which the  judge candidly  and            commendably disclosed  the matter    omitted  to follow Canon            3D  in basic  ways.   Canon 3D  was developed  to offset  the                                         -27-                                          27            criticism  that  otherwise   disqualified  judges   sometimes            secured the parties'  agreement to allow them to  continue in            cases by taking advantage  of counsel's natural reluctance to            offend  a judge  before whom they  frequently had  to appear.            The  original language of Canon  3D was drafted  by a special            committee  of the  American  Bar Association  chaired by  the            former  chief justice  of  the Supreme  Court of  California,            Justice Traynor.   Justice Traynor emphasized  that, before a            valid waiver could occur, counsel must receive an opportunity            to confer  with their  clients outside the  judge's presence.            The special committee  also believed that the client  as well            as counsel had to be involved in the waiver  decision, as the            "parties  are  less  likely  than counsel  to  feel  judicial            pressure [to  remain in  the case]  . . . ."   Broadening and                                                           ______________            Clarifying   the   Grounds  for   Judicial  Disqualification:            _____________________________________________________________            Hearing  on  S. 1064  Before  the Subcomm.  of  Courts, Civil            _____________________________________________________________            Liberties and  the Administrative Justice of  the House Comm.            _____________________________________________________________            on the Judiciary, 93d Cong., 2d Sess. (1974).             ________________                      The Canon serves in  part to dispel counsel's sense            that by failing immediately  to endorse the judge's continued            presence  in the  case,  counsel might  annoy  the judge  and            prejudice their  cause.   Under  the Canon,  counsel must  be            extended  an  opportunity  to  consider  the disqualification            issue outside the judge's presence, hence free from  the fear                                         -28-                                          28            that any hesitancy to  endorse the judge's continued presence            may be personally held against him.                      In the  present case,  the judge never  stated that            local    counsel   was   free   to   withdraw   and   discuss            disqualification with  his client and co-counsel.   The judge            knew or should  have known at this  time that counsel had  no            prior  opportunity to discuss the issue with his client.  The            judge had  not  disclosed the  subject of  the conference  in            advance.   Local counsel  had made  express  inquiry the  day            previous as to what the January 12 meeting would be about and            could  learn nothing.    Counsel, therefore,  could not  have            discussed the issue with his client and lead counsel prior to                                                                 _____            the meeting.  When  he came to the conference,  local counsel            had to react on the spur  of the moment, without knowing what            rights the  judge was prepared to  recognize, without knowing            whether the  judge would recuse himself  if counsel objected,            and without reassurance from the court that, without offense,            local counsel would be given a chance to consider this matter            with his client outside of the court's presence.  The express            language  of  the  Canon,   conditioning  a  waiver  upon  an            opportunity to  confer with  the parties and  counsel outside            the judge's  presence, was  not, in these  circumstances, put            into play.                        In hindsight, to be  sure, local counsel could have            sought  to save the situation  by requesting time  to talk to                                         -29-                                          29            lead  counsel and his client    a request the judge indicates            he  would have granted.  However, without the judge's advance            advice, counsel would not necessarily  be expected to know of            his rights under  Canon 3D, or  indeed to know that  Canon 3D            existed  at all.  Moreover, counsel may have felt that, where            the judge stated that the disclosed conduct would  not affect            his ability  to  decide  the case,  and  indicated  no  clear            willingness  to withdraw,  any hesitancy  would simply  be an            irritant.  The duty to  extend the benefits of this Canon  to            the parties  rests upon the  judge.  Here  the judge did  not            mention  the provisions of the Canon nor indicate what rights            he would recognize.                        In  such circumstances,  I think  it plain  that no            waiver occurred on January 12.   In fact, the scenario at the            January 12 conference was  exactly the one that Canon  3D was            intended to change.   The drafters of Canon 3D thought that a            judge who simply announced disqualifying facts, indicated his            desire to  continue to serve, and solicited and accepted oral            waivers  from the  attorneys present,  might be  exercising a            "velvet blackjack."   Broadening  and Clarifying  the Grounds                                  _______________________________________            for Judicial Disqualification:  Hearing on S. 1064 Before the            _____________________________________________________________            Subcomm. of Courts,  Civil Liberties  and the  Administrative            _____________________________________________________________            Justice  of the House Comm.  on the Judiciary,  93d Cong., 2d            _____________________________________________            Sess. (1974).   Canon 3D,  by requiring  discussion with  the            clients outside  the judge's  presence and, by  requiring the                                         -30-                                          30            clients' acquiescence as well  as that of counsel,  sought to            ease the  pressures to  acquiesce that inhered  in the  "old"            process.                        It is true that the Code of Judicial Conduct is not            statutory,  nor does  the Judicial  Conference of  the United            States which adopted the Code hold a specific statutory grant            of authority to  enact binding ethical  rules.  However,  the            Conference is itself a  creature of statute.  See 28 U.S.C.                                                            ___            331.  Chaired by the Chief Justice, the Conference is the one            body recognized  as speaking administratively  for the entire            federal  judiciary.   Its adoption  of  Canon 3D,  I suggest,            gives the  Canon great persuasive weight.   Additionally, the            provisions  of Canon  3D emanated from  a model  ethical code            drafted by the American Bar Association and adopted in one or            another version, by many  states.  It is important,  I think,            to our institutional credibility, that the procedures set out            in Canon 3D of  the Code of Conduct for United  States Judges            be taken seriously.                      As,  in  my view,  no waiver  occurred by  force of            local  counsel's acquiescence  on  January  12, the  question            arises  whether some kind of de facto waiver or equitable bar            should be  implied from Cargill's failure  to object promptly            to the judge's continued participation once its local counsel            had told it of the judge's disclosures.  Cargill also learned            at the January 12 conference that the judge was about to hand                                         -31-                                          31            down  his ruling.    If Cargill  did  not want  the judge  to            participate, my colleagues believe that Cargill  was required            to protest then and  there, rather than strategically waiting            to  see how  the wind blew,  objecting     as it  did    only            after the judge had ruled against it.                      This  is  a close  question.    There is  certainly            weight to my  colleagues' view that  Cargill may be  misusing            the  Canon  now for  purely strategic  purposes.   It  can be            implied,  moreover,  that  the  district  court having  fully            revealed the  conduct in question,  sincerely, if incorrectly            under  the Canon,  relied  on local  counsel's approval,  not            withdrawn,  as  sanctioning  the court's  continuance  in the            case.   But while reasonable minds may differ, I believe that            the court's failure to follow Canon 3D's waiver procedures so            clouded future events as to make it inappropriate to read too            much   into  Cargill's  failure   to  challenge  the  judge's            continued participation during the  week prior to the court's            ruling on the  motion.   A primary purpose  of the  procedure            outlined in the Canon  is to remove, or  at least to  lessen,            the  pressure of the judge's feared resentment if a waiver is            not quickly  volunteered.   This lessening of  pressure would            not have happened here.  The Canon anticipates that the court            will reassure attorneys in advance of their right to speak to            their clients out  of the  judge's presence.   Also that  the            judge  will inform counsel that he will withdraw if waiver is                                         -32-                                          32            not  granted, or, at least, of his intentions in this regard.            In  the  present case,  by the  time  Cargill learned  of the            judge's stated  grounds for disqualification,  the judge  had            already made the  decision not  to recuse himself.   At  that            point, Cargill had no assurance that its repudiation of local            counsel's acquiescence  would be honored.   It had  to decide            whether  to risk angering the  judge futilely at  a time when            the matter seemed to  have been settled and a decision on its            motion was imminent.                        To  be sure,  Cargill's  local counsel  could  have            acted differently.   It is often  true    and properly  so               that a client is bound by positions taken or not taken by his            attorney.  Canon  3D makes it  clear, however, that  attorney            acquiescence, standing  alone, is not enough  to constitute a            waiver.  Local  counsel's acquiescence followed by  Cargill's            reluctance to object cannot be disassociated from the judge's            initial  failure  to  implement  the  Canon  provision      a            provision   that  the   judge  himself  is   responsible  for            explaining and implementing in the first instance.  Canon 3D,            setting  out the requirements for  a judge to  secure a valid            waiver of his own disqualification, is not mere grist for the            adversarial mill.  Rather, it is  a rule of conduct the judge            is supposed to know and apply.  While Cargill's counsel might            have saved the situation, responsibility for the error should            not too  easily be  shifted to  the shoulders  of one  of the                                         -33-                                          33            parties.    Given the  altered situation  confronting Cargill            once the die had been  cast on January 12, I am  not disposed            to  find  that  Cargill  ratified  local  counsel's   earlier            acquiescence simply  by taking  no action before  the court's            decision.                        Cargill, to  be sure, had  to act diligently  if it            wished  to  challenge the  judge.   Delay  would  soon become            unfair to  Cargill's opponent,  who would continue  to invest            money  and  effort  into the  lawsuit  in  reliance  upon the            continued service of  the judge in  question.  But  Cargill's            raising of  an objection  within a month  after the  decision            seems to me to be acceptable given that the initial error was            that of  the judge, not Cargill.   In so  saying, I recognize            the validity of my colleagues'  concern that Cargill may well            be acting strategically, and that courts are, and  should be,            reluctant to allow  two bites at the apple.  But against this            must be weighed the nonobservance of Canon 3D.                      As    455(a) applied and, in my view, no sufficient            waiver  occurred  under     455(e), the  question  of  remedy            arises.   In Liljeberg v. Health Serv. Acquisition Corp., 486                         _________    ______________________________            U.S. 847, 862-64 (1988), the Supreme Court wrote:                      A  conclusion that a [  455(a)] violation                      occurred  does  not,  however,   end  our                      inquiry.  As in other  areas of  the law,                      there is surely  room for harmless  error                      committed    by     busy    judges    who                      inadvertently  overlook  a  disqualifying                      circumstance.     There  need  not  be  a                      draconian remedy for every violation of                                           -34-                                          34                      455(a)  . . . .    We  conclude  that  in                      determining whether a judgment  should be                      vacated  for a violation  of   455(a), it                      is  appropriate to  consider the  risk of                      injustice   to   the   parties   in   the                      particular case, the risk that the denial                      of relief will produce injustice in other                      cases,  and the  risk of  undermining the                      public's   confidence  in   the  judicial                      process.            See also In re Allied-Signal, Inc., 891 F.2d 974, 975-76 (1st            ________ _________________________            Cir. 1989).                      For a new judge  to be brought in at  this juncture            would not, in my view,  be a draconian remedy, nor a  license            for  unwarranted attacks on courts.  To be sure, the question            that arose  here    the judge's  brief use of the  senior law            partner  in the same law  firm retained by  plaintiffs    was            not  monumental and  quite likely would  have been  waived by            Cargill  in a  proper proceeding.   Moreover,  evidencing his            integrity, the judge quickly called a conference and revealed            all the  relevant facts.  Nonetheless,  the judge's retention            of Mr. Petruccelli  at the  time of the  pending lawsuit  did            create the  appearance of  lack of impartiality;  and section            455(a) required the  judge to step  aside unless he  received            proper waivers from the parties.  As this did not occur here,            and as  the case is still at an early stage, I think it would            be reasonable for  another judge  to enter the  case.   While            this imposes some small price on the court and plaintiffs, it            is justified as demonstrating the need to observe  the Canon.                                         -35-                                          35                      I  would add  that,  had mandamus  requiring a  new            judge been  granted, it would have been open to this court to            let stand  the former  judge's ruling on  Cargill's dismissal            motion.  Whether to do this would have been a close question,            but, however that issue  were resolved, the bringing in  of a            new judge would have emphasized that Canon 3D  procedures are            not precatory.                        I  do  not   take  too  seriously  my   colleagues'            suggestion  that this  issue may  be revisited  several years            down  the  road  on direct  appeal  from  any final  judgment            rendered  in  plaintiffs' favor.    By  then  there would  be            overwhelming  equities in  plaintiffs' favor  not  to require                                                          ___            them to undergo the  expense and burden of retrying  the case            before a different judge.  The Supreme Court has stated "that            in determining  whether a judgment  should be  vacated for  a            violation of   455(a), it is appropriate to consider the risk            of  injustice to the parties."   Liljeberg, 486  U.S. at 864.                                             _________            Mandamus has been properly recognized as the usual and proper            remedy  for  raising and  resolving  promptly  a question  of            judicial disqualification such as this.  See, e.g., Alexander                                                     ___  ____  _________            v.  Primerica Holdings, Inc., 10 F.3d 155 163 (3d Cir. 1993);                ________________________            In re  United States, 666 F.2d  690, 694 (1st Cir.  1981).  I            ____________________            would  expect  that  the  court's decision,  which  has  been            rendered after the most  careful consideration by all members            of the panel, will end the matter.                                         -36-                                          36                         Appendix to Judge Campbell's Dissent                         Appendix to Judge Campbell's Dissent                      For  the following  reasons,  I conclude  that  the            judge's relationship  with Mr.  Petruccelli  required him  to            recuse himself under 28 U.S.C.   455(a) absent receipt of the            parties'  waiver.  That statute provides  that a judge "shall                                                                    _____            disqualify   himself  in   any   proceeding   in  which   his            impartiality  might  reasonably  be   questioned."  (emphasis                          _________________            supplied).   The legislative  history indicates  that section            455(a) was meant  to lessen  the traditional  "duty to  sit,"            and,  as   the  Supreme  Court  has   indicated,  to  require            avoidance of even the appearance of partiality.  Liljeberg v.                                                             _________            Health Serv. Acquisition Corp.,  486 U.S. 847, 860-61 (1988).            ______________________________            Recusal  may  be  required  even in  the  absence  of  actual            partiality if  there is  an objectively reasonable  basis for            doubting the judge's impartiality.  Id.; see Code of Judicial                                                ___  ___ ________________            Conduct Canon  2 (1973) ("[A] judge  should avoid impropriety            _______            and the  appearance of  impropriety in all  his activities.")                __________________            (emphasis supplied).  The Committee on  the Codes and Conduct            of the Judicial Conference of the United States stated that                      where  an   attorney-client  relationship                      exists  between the judge  and the lawyer                      whose law firm  appears in the case,  the                      judge should recuse absent remittal.            2  Administrative  Office  of   the  U.S.  Courts,  Guide  to                                                                _________            Judiciary Policies and Procedures V-25 (1993).             _________________________________                                         -37-                                          37                      The  proper standard  for  ascertaining  whether  a            judge's  impartiality might reasonably  be questioned under              455(a)  is whether  the  charge of  lack  of impartiality  is            grounded on  facts that would create a  reasonable doubt, not            in the  mind of  the judge, or  even necessarily that  of the            litigant, but  rather in the  mind of the  reasonable person.            See  United States  v. Cowden,  545 F.2d  257, 265  (1st Cir.            ___  _____________     ______            1976),  cert. denied, 430  U.S. 909  (1977).   Section 455(a)                    ____________            requires a  contextual, case-by-case  analysis.  It  does not            imply a bright-line rule disqualifying any judge who ever has            personal  dealings  with an  attorney  whose firm  represents            litigants  before the same judge.   The existing  case law on            the subject  of judge-attorney dealings rests  on exceedingly            fact-specific judgments, with different outcomes in different            situations.11                                            ____________________            11.  See In re Placid  Oil Co., 802 F.2d 783 (5th Cir. 1986);                 ___ _____________________            Potashnick  v.  Port City  Constr.  Co., 609  F.2d  1101 (5th            __________      _______________________            Cir.), cert. denied, 449 U.S. 820 (1980); Texaco v. Chandler,                   ____________                       ______    ________            354 F.2d 655  (10th Cir.  1965), cert. denied,  383 U.S.  936                                             ____________            (1966); Rapp v. Van Dusen, 350 F.2d 806 (3d Cir. 1965); In re                    ____    _________                               _____            Snowshoe Co., 137  B.R. 619 (D. W. Va. 1991), aff'd mem., 953            ____________                                  __________            F.2d 639 (4th  Cir. 1992); Carbana v. Cruz, 595  F. Supp. 585                                       _______    ____            (D.P.R.  1984), aff'd  mem., 767  F.2d 905  (1st  Cir. 1985);                            ___________            Miller Indus., Inc. v. Caterpillar  Tractor Co., 516 F. Supp.            ___________________    ________________________            84 (D. Ala. 1980);  Smith v. Sikorsky Aircraft, 420 F.  Supp.                                _____    _________________            661  (C.D. Cal.  1976).  See  also Varela v.  Jones, 746 F.2d                                     _________ ______     _____            1413  (10th Cir. 1984); S.J. Grove &  Sons Co. v. I.B.T., 581                                    ______________________    ______            F.2d 1241  (7th Cir. 1978);  United States v.  Equifax, Inc.,                                         _____________     _____________            557 F.2d 456  (5th Cir.  1977), cert. denied,  434 U.S.  1035                                            ____________            (1978);  In re Georgetown Park Apt., 143 B.R. 557 (Bankr. 9th                     __________________________            Cir.  1992). Cf. In re Allied-Signal, Inc., 891 F.2d 974 (1st                         ___ _________________________            Cir. 1989).                                         -38-                                          38                      Having said this, certain principles seem clear.  A            judge  would ordinarily be disqualified to sit by   455(a) if            an attorney in  the case before him or her  were, at the same            time, actively  representing the judge in  a personal matter.            See  13A  Charles  Wright,  Arthur Miller  &  Edward  Cooper,            ___            Federal  Practice and  Procedure    3549  at 614  (1984); cf.            ________________________________                          ___            Potashnick, 609  F.2d at  1110-12; Texaco,  354 F.2d at  657.            __________                         ______            And while the situation is more attenuated where the judge is            being personally  represented not by the same attorney but by            someone else in the attorney's firm,  the latter situation is            at least cause for concern, as there can be no doubt that, in            many  factual  situations,  such   overlap  can  create   the            appearance  of  partiality  calling for  withdrawal  under               455(a).   The  members of  the Judicial  Conference Committee            advising  judges as to the proper  interpretation of the Code            of Conduct  have said  as much.   See  2  Guide to  Judiciary                                              ___     ___________________            Policies and Procedures, supra, at V-25.            _______________________  _____                      Weighing all  the factors in the present case    in            which  I  entertain no  doubt  whatsoever as  to  the judge's            personal  integrity         I  nonetheless   believe  that  a            reasonable person  viewing all  the circumstances  might have            questioned the impartiality of the judge.  The judge's ruling            to the contrary was, I believe, an abuse of  discretion.  See                                                                      ___            In  re United  States, 666 F.2d  690, 697 (1st  Cir. 1981) (a            _____________________                                         -39-                                          39            federal  judge's decision  on  whether to  recuse himself  or            herself is committed to that judge's sound discretion).                      The judge received personal legal services from the            senior partner of Petruccelli  & Martin, a small eight-member            firm,  close to  the time  the court  ruled upon  a dismissal            motion that, had it been resolved for Cargill, would have put            Petruccelli & Martin's client  out of court.  The  problem is            not simply that by  personally retaining Mr. Petruccelli, the            judge  indicated   he  had  high  regard   for  the  latter's            professional  abilities.    Judges  may and  often  do,  with            propriety, indicate  respect  for an  attorney's  competence.            Here, however, by retaining the  senior partner of this small            firm for personal legal  advice while having under advisement            a dispositive motion in a case being handled by other members            of the  firm, the court gave the  appearance that he may have            had  a particular  affinity for  that firm  and  perhaps some            close and special relationship.  Other attorneys  in the same            case could reasonably have  been offended by what might  have            appeared,  from  the outside,  to  have  been a  confidential            relationship between  the judge  and Mr. Petruccelli  at that            particular  time.  Also, even after the ending of the judge's            own attorney-client relationship,  an outside observer  might            wonder if, in some  manner, consciously or unconsciously, the            judge's  appreciation for a job well  done by plaintiff's law            firm might possibly affect his handling of the pending case.                                         -40-                                          40                      The judge's brief attorney-client relationship with            Mr.  Petruccelli  ended,  it  is  true,  before  the  judge's            decision in  the case against  Cargill.  The  judge, however,            had worked  on Cargill's  motion  during the  period of  that            relationship.  Moreover, the relationship ended only ten days            before the decision      a period  too short to insulate  the            two events from  one another.   Any appearance of  partiality            that  existed prior  to  the time  the representation  ceased            cannot be meaningfully separated from the court's decision of            January 19.                        It  is  important to  emphasize  that  28 U.S.C.               455(a)  is  concerned  with the  appearance  of impartiality.                                             __________            Liljeberg, 486  U.S. at 860-61.   Disqualification for actual            _________                                              ______            personal  bias  or  prejudice  is  separately  covered  by               455(b)(1).  The judge seems to have overlooked the appearance            aspect  of the statute when  he emphasized at  the January 12            conference his moral certainty that his handling  of the case            would  not   be  affected   by  the  relationship   with  Mr.            Petruccelli.  The question was not just whether he was biased            or prejudiced, but whether  his impartiality might reasonably                                         -41-                                          41            be questioned,  a related but different  matter.12  According            to the House Report accompanying amendments to   455,                       Subsection (a) of the amended section 455                      contains the general,  or catch-all,  [of                      Canon 3C] that  a judge shall  disqualify                      himself in  any proceeding in  which 'his                      impartiality'    might   reasonably    be                      questioned.   This  sets up  an objective                      standard,  rather   than  the  subjective                      standard  set  forth   in  the   existing                      statute . . . .  This general standard is                      designed to promote public  confidence in                      the impartiality of the  judicial process                      by  saying, in  effect,  if  there  is  a                      reasonable factual basis for doubting the                      judge's    impartiality,     he    should                      disqualify himself and let  another judge                      preside over the case.  The language also                      has the effect of removing  the so-called                      'duty to sit' which has become a gloss on                      the existing statute . . . .              H. Rep. No. 93-1453, 93d Cong., 2d Sess. (1974), reprinted in                                                             ____________            1974 U.S.C.C.A.N. 6351.                      To  be sure, the drafters of  the statute were also            concerned, as are my colleagues here, that the statute not be                                            ____________________            12.  Section 455 was completely rewritten by Congress in 1974            so as to conform  with the then-new Code of  Judicial Conduct                                                _________________________            which  the  Judicial  Conference  of the  United  States  had            adopted in  1973 as being  applicable to all  federal judges.            Section  455 was amended so as nearly to duplicate the Code's            Canon 3C,  with the intention  that federal judges  "would no            longer be subject to dual [i.e.] Code and statutory standards            governing  their   qualification  to  sit  in   a  particular            proceeding."    H. Rep.  No.  93-1453,  93d Cong.,  2d  Sess.            (1974),  reprinted in 1974  U.S.C.C.A.N. 6351.   The  Code of                     ____________                                 _______            Judicial   Conduct  was  drafted  under  sponsorship  of  the            __________________            American  Bar Association  by a  committee chaired  by former            California  Chief  Justice  Roger   J.  Traynor.  The   other            committee members included Justice Potter Stewart of the U.S.            Supreme Court, Judge Irving  R. Kaufman of the U.S.  Court of            Appeals for the  Second Circuit, and Judge Edward  T. Gignoux            of the U.S. District Court for the District of Maine.                                         -42-                                          42            used by litigants for  purely strategic purposes.   The House            Report  cautions  that the  new test  should  not be  used by            judges to avoid sitting  in difficult or controversial cases.            Disqualification for lack of impartiality must always have "a            reasonable basis."  Id. (emphasis in original).              __________          ___                      Yet the question at  issue is, objectively, whether                                                     ___________            the  circumstances reasonably gave rise  to a question of the            judge's  impartiality.   If  so, the  judge shall  disqualify                                                        _____            himself.  An express purpose of the 1974 rewrite of   455 was            to  abandon the  subjective  standard of  the older  statute,            which  had depended largely  on the judge's  personal view of            whether he  or she could behave  impartially.  Unfortunately,            the circumstances here created a situation where a reasonable            observer   could  entertain   doubts   as   to  the   judge's            impartiality.  The judge himself obviously had concerns about            the  appearance of what had happened, leading him to call the            conference of January 12 for  the purpose of disclosing  what            had transpired.          That  a  question  of   the  judge's            impartiality under    455(a) existed does  not mean that  the            judge committed  a serious impropriety.   The judge explained            that  he did  not  immediately focus  on  the fact  that  Mr.            Petruccelli's firm, partners and associates  were involved in            the  case  pending  before  him.     Once  aware,  the  judge            commendably disclosed  the relationship.   This action speaks            loudly as  to  the  judge's personal  integrity.    The  fact                                         -43-                                          43            remains,   however,  that   a   reasonable   observer   could            objectively   question  the   judge's  impartiality   in  the            particular circumstances.  The judge was, therefore, required            to remove himself unless he had received the parties' waiver.                                         -44-                                          44
