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Chapter 4.5. Division of Workers' Compensation
Subchapter 1. Administrative Director--Administrative Rules
Article 1.6. Ethical Standards of Workers' Compensation Referees; Enforcement of Standards

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§9721.12. Disqualification.

(a) A judge is disqualified in a workers' compensation case if any of the following is true:

  (1) The judge has personal knowledge of disputed evidentiary facts.  


  (2) The judge served as lawyer for a party in the past two years.  


  (3) The judge has actual bias in favor of or against any party and the judge has substantial doubt as to his or her capacity to be impartial.  


  (4) Because of physical impairment, the judge is unable to perceive evidence or properly conduct proceedings.  


  (5) Within the past two years, the judge served as a lawyer for an officer, director, trustee of a party.  


  (6) Within the past two years, the judge was associated in private practice, as an employee or on a contract basis, with a lawyer in the proceedings.  


  (7) The judge, the judge's spouse, or minor child of the judge, personally or as a fiduciary, has a financial interest in the subject matter in a proceeding or in a party to the proceeding, or has a relationship of director, advisor, or active participant to a party to the proceeding.  


  (8) The judge, the judge's spouse, a relative of either within the third degree of relationship, or spouse of such relative, is likely to be a material witness.  


  (9) A party to the action before the judge, or the party's spouse, is related within the third degree of relationship to either the judge or to the judge's spouse.  


  (10) The judge believes that recusal would further the interests of justice or believes there is a substantial doubt as to his or her capacity to be impartial.  


  (11) The judge has actual bias against or in favor of an attorney for a party and the judge has a substantial doubt as to his or her capacity to be impartial. A judge is not disqualified as to other members or associates in a law firm, or as to the law firm itself, solely because of actual bias against or in favor of individual attorneys in or associated with the firm. Actual bias in favor of or against an attorney does not in itself create the appearance of bias as to a law firm of which the attorney is a member or associate. A doubt of a person aware of the facts that a judge could be impartial towards a law firm or other members or associates of a law firm, based only on knowledge of a judge's bias in favor of or against an individual attorney or attorneys, is not a doubt which is reasonably entertained. If the workers' compensation appeals board, on a petition for disqualification alleging bias against or in favor of an attorney, determines that a judge is disqualified because of the appearance of bias or because a person aware of the facts might reasonably entertain a doubt that the judge could be impartial, it shall not be presumed, as to a law firm of which the attorney is a member or associate, or as to other members or associates of the law firm:  


  A. that there is the appearance of bias; or  


  B. that a person aware of the facts might reasonably entertain a doubt that the judge could be impartial.  


(b) The parties may waive the disqualification of a judge after written disclosure of the facts constituting a ground of disqualification. A judge who believes he or she is disqualified shall recuse or shall state in writing the basis of disqualification. All waivers shall be in writing and shall be made part of the file, or shall be made on the record. The judge may ask the parties and their attorneys whether they wish to waive the disqualification. The judge may not request the parties or attorneys to waive the disqualification The parties and any attorney for the employee shall execute any waiver. An attorney for a party other than the employee may execute the waiver on behalf of the attorney's clients. Such a waiver shall state that the attorney has advised the client of the disqualification information, and that the client has agreed to waive the disqualification.

(c) Disqualification for the following circumstances cannot be waived:

  (1) The judge, the judge's spouse, a relative of either within the third degree of relationship, or spouse of such relative, is likely to be a material witness  


  (2) The judge served as a lawyer in the case.  



     Note: Authority cited: Sections 123.6, 133 and 5307.3, Labor Code. Reference: Sections 111 and 123.6, Labor Code.  


 HISTORY 
   
1. New section filed 8-25-2008; operative 9-24-2008 (Register 2008, No. 35).

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