While thousands of lawyers' eyes passed over a recent update post about the Bergdahl case, only one comment was made, by "NotALawyer." Despite this person's lack of legal training, I found this comment to be astonishingly on point--raising a not-yet-discussed CA7 case that demolishes ACCA's reasoning regarding the effect of Bergdahl's failure to inquire into Nance's job search.
"[A] party does not have an obligation to discover any potentially disqualifying information that is in the public record. The onus is on the judge to ensure any potentially disqualifying information is brought to the attention of the litigants. 28 U.S.C. § 455(c) (“A judge should inform himself about his personal and fiduciary financial interests.”); see also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 873 n. 9 (1988) (“[N]otwithstanding the size and complexity of the litigation, judges remain under a duty to stay informed of any personal or fiduciary financial interest they may have in cases over which they preside.”). It would be unreasonable, unrealistic and detrimental to our judicial system to expect litigants to investigate every potentially disqualifying piece of information about every judge before whom they appear. “[L]itigants (and, of course, their attorneys) should assume the impartiality of the presiding judge, rather than pore through the judge's private affairs and financial matters․ ‘Both litigants and counsel should be able to rely upon judges to comply with their own Canons of Ethics.’ “ Am. Textile Mfrs. Inst., Inc. v. Limited, Inc., 190 F.3d 729, 742 (6th Cir.1999) (quoting Porter v. Singletary, 49 F.3d 1483, 1489 (11th Cir.1995))."
Listecki v. Off. Comm. of Unsecured Creditors, 780 F.3d 731 (7th Cir. 2015).
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