Why Trump lawyers won’t ask Trump University judge to step aside; Reuters, 6/6/16

Alison Frankel, Reuters; Why Trump lawyers won’t ask Trump University judge to step aside:

"As many, many legal experts have opined in the past few days, a federal judge’s ethnicity or national origin cannot serve as the basis for a claim of judicial bias. The 2nd U.S. Circuit Court of Appeals, for instance, held in its 1998 opinion in MacDraw Inc v. CIT Group that U.S. District Judge Denny Chin (now on the appeals court) was within his rights to sanction two lawyers who asked whether his Asian ancestry prejudiced him against them. (They were involved in completely separate litigation against an Asian fundraiser for President Bill Clinton, who appointed Chin.) “Courts have repeatedly held that matters such as race or ethnicity are improper bases for challenging a judge’s impartiality,” the 2nd Circuit said. Added Alexandra Lahav, who specializes in legal ethics at the University of Connecticut: “There is no basis in the law or our legal history. It’s antithetical to the rule of law.”

Trump has a First Amendment right to express his opinion of the Trump University proceedings, which have certainly not gone the way he and his lawyers would have liked...

Outside of court, Trump can say just about whatever he wants about the case without much risk of being held accountable. It might be another story if the candidate were to express contempt for Judge Curiel or the proceeding inside the judge’s courtroom, but so far, Trump has not made accusations to Curiel’s face.

Nor are the candidate’s lawyers responsible in court for what their client says about the judge outside of the courtroom. The American Bar Association’s model rules of professional conduct explicitly say that representing a client does not mean a lawyer endorses the client’s “political, economic, social or moral views or activities.” Ethics adviser Thomas Mason of Harris Wiltshire & Grannis said lawyers generally do not face sanctions for what their clients say – and that goes double when the client is running for president. “How easy do you think it would be for any lawyer at any firm to control what Mr. Trump says?” Mason asked.

If, however, O’Melveny were to accuse Judge Curiel of bias in a filing that cited only his heritage as evidence, according to legal ethics experts, the firm could be accused of bringing a frivolous motion, according to Mark Foster of Zuckerman Spaeder and Barry Cohen of Crowell & Moring, who counsel law firms on professional responsibility."