The opinion of the court was delivered by: LACEY
Plaintiff has moved for my recusal under 28 U.S.C. § 455. The motion is grounded upon an alleged appearance of impropriety and bias due to my prior associations with Harold Fisher, Esq., a partner in the law firm of Shanley & Fisher, Newark, New Jersey, and Ronald S. Diana, Esq., counsel for the defendant The Hearst Corporation and a former associate attorney at Shanley & Fisher. In support of the motion plaintiff has filed the certification of her attorney, Robert R. Bryan, Esq., as well as her own certification and affidavit. The grounds urged are as follows.
Plaintiff states that I was formerly a member of the law firm of Shanley & Fisher. Additionally, plaintiff asserts that Mr. Fisher actively participated in the prosecution of plaintiff's late husband, Richard Hauptmann, in 1934 through 1935. It is contended by plaintiff that Mr. Fisher helped draft the indictment, was present throughout the trial, conducted research during the prosecution and participated in writing the State's appellate brief. Such activity, plaintiff submits, "relates directly to the very nucleus of the present action." Motion of Plaintiff for Disqualification, filed July 12, 1982, at para. 2.
As for Mr. Diana, plaintiff contends that he was employed by the Shanley & Fisher firm from 1958 until 1960 and that during that period he worked on various matters under my direction.
Plaintiff's motion contains another aspect. Plaintiff contends that because this case is
recognized as the 'Trial of the Century' and was the largest and most notorious trial in the history of New Jersey, virtually no judge in New Jersey is without at least the appearance of prejudice, if not actual bias, due to the significance of the case. It is believed, based upon information secured through a continuing investigation, that it is very doubtful a judge can be selected from within New Jersey without the appearance of impropriety. It has been ascertained that due to the tremendous notoriety of the case . . . few members of the New Jersey legal community in positions of authority have not had close association with various individuals involved in the prosecution of the Hauptmann case.
Motion of Plaintiff for Disqualification, filed July 12, 1982, at para. 5.
Based upon the foregoing, plaintiff claims that an appearance of impropriety exists if I continue to preside over this matter.
28 U.S.C. § 455 provides in pertinent part as follows:
(a) Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it . . . .
28 U.S.C. § 455 (Cum.Supp.1982) (emphasis added). Section 455(a) establishes a general standard for disqualification and Section 455(b)(2) contains a specific instance which mandates disqualification. In Re: International Business Machines, 618 F.2d 923, 927-28 (2d Cir.1980); Tilewick, Decisions Construing the Judicial ...