THE ETHICS OF REPRESENTING DEBTORS &
CREDITORS IN BANKRUPTCY

adversary proceeding or contested matter in which a disqualifying circumstance arises, or if appropriate, is disqualified from presiding over the entire bankruptcy case. There are two categories of disqualifying circumstances: (a) any proceeding in which the judge's impartiality might reasonably be questioned; and those matters specifically enumerated in 28 U.S.C. § 455(b). Only the first category of disqualifying circumstances may be waived by the parties.

1. The ability of courts to limit disqualification just to a contested bankruptcy proceeding as distinguished from the entire bankruptcy case recognizes the unique nature of a bankruptcy case as an umbrella under which a number of distinct, varied controversies are resolved. The relationship of the judge to a creditor or an attorney in the case may disqualify the judge from handling litigation involving that creditor or attorney, but require disqualification from the entire case only if that creditor or attorney took a substantial and ongoing role in the overall case.
2. The standard for disqualification under the non-specific provisions of § 455(a) is an objective one, determined by what a reasonable person knowing all the relevant facts would think about the impartiality of the judge rather than what the judge estimates to be his own ability to impartially hear a case. A reasonable, factual basis to doubt the impartiality or fairness of the judge must be shown by some kind of probative evidence, generally through testimony and affidavits. In some cases the court has conducted a hearing on the facts; in other cases the court has assumed for purposes of

This outline is adapted from Chapter 27, Ethical Responsibilities, Norton Bankruptcy Law & Practice 2d (Thomson-West 2005)