The opinion
CHARLES R. RICHEY, District Judge
(concurring):
With some reservation, I reluctantly concur in Judge Wald’s opinion but am now *360 writing to clarify my differences with the majority without in any way intending to reflect adversely upon my two colleagues or the sincerity of their views. I am just compelled to express my views separately on two issues of crucial importance in this and future cases. I address them seriatim.
The Trial Judge Should Be Directed To Conduct a Prompt Hearing Prior To Trial Because It May Be Necessary For Counsel To Appear As a Witness
One of the crucial factual issues to be decided at the trial of this case will be whether Mrs. Roller actually took Bendectin during the critical period; that is, during the first trimester of her pregnancy. The importance of this issue is evidenced by the zealous efforts of counsel for all parties to obtain statements and/or retractions from Janowski, who claimed that Roller had admitted not taking the drug during the critical period. Unfortunately, however, zealous efforts can often lead to the possibility that a lawyer will be called as a witness. In this case, given the active role that counsel for both sides have taken in gaining statements from Janowski, and given the apparent inconsistency of some of those statements, there is a strong possibility that a lawyer from either side, or both, will be called to testify. The lawyers may have to testify concerning their actions in communicating with Janowski or other matters, or even to impeach her credibility. When the potential for unfair surprise and prejudice to either side is so great, it is the responsibility of this Court to sua sponte raise the issue and give the trial court specific direction on how to resolve the problem.
The public interest demands an efficient use of judicial resources towards the “just, speedy and inexpensive” remedy spoken for in Rule 1 of the Federal Rules of Civil Procedure. Towards that end, “courts should sua sponte raise ethical problems involving danger to a just, speedy and inexpensive remedy, even if the parties do not.” General Mill Supply Co. v. SCA Services, Inc., 697 F.2d 704, 711-12 (6th Cir.1982); Moyer v. 1330 Nineteenth Street Corp., 583 F.Supp. 1580 (D.D.C.1984). Here the danger is a large probability. Defense counsel may choose to call Allis to try and show that he obtained the retraction from Janowski in a misleading or unfair manner. Plaintiffs counsel may decide to call a member of the defense law firm to try and show that Janowski’s original claim that Roller was not telling the truth, was induced by financial or other incentives or threats. In addition, there exists the potential that a lawyer on either side will need to be called to support their own client’s position. For example, Allis may need to testify concerning what Janowski told him during his visit to obtain the retraction.
Attorneys appearing before this Court and the District Court are governed by the Code of Professional Responsibility adopted by the District of Columbia Court of Appeals. Local Rule 4-3(IV)(b): DR 5-102(A) provides that a “lawyer ... shall withdraw from the conduct of the trial and his firm, if any, shall not confine in the representation in the trial” if he knows or it is obvious that he ought to be called as a witness on his client’s behalf. In addition, DR 5-102(B) provides that when “a lawyer learns or it is obvious that he ... may be called as a witness other than on behalf of his client” he may continue representation only until it is apparent that his testimony may be prejudicial to his client. Ethical Consideration 5-9 notes that “[t]he roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state the facts objectively.” In such situations where the lawyer is called to testify, as this Court has recognized, the “case v/ould be presented through the testimony of an obviously interested witness who is subject to impeachment on that account ...”. Groper v. Taff, 717 F.2d 1415, 1418 (D.C.Cir.1983). As such, the lawyer is put “in the unseemly position of arguing his own credibility”. Id. When an attorney is forced to argue his own credibility, the effects are disas *361 trous. Such testimony has high prejudicial impact which is unlikely to be outweighed by its probative value. Fed.R.Evid. 403. The magnitude of the problem is ably discussed in General Mill Supply Co. v. SCA Supply Services, Inc., 697 F.2d 704, 712 (6th Cir.1982):
The experience of the bar and its collective voice in the ABA Canons demands the separation of the roles of advocate and witness. Experience shows that one who combines both roles is not likely to be, as an officer of the court, helpful to' the court. There is always danger that when he speaks he will forget whether he speaks as advocate or counsel, to the likely confusion of proceedings, as well as their embitterment. Experience teaches that embitterment between counsel does not conduce to just and speedy proceedings. Such embitterment is likely to occur when one counsel undertakes to impeach the credibility of opposing counsel in his capacity of witness.
See also Moyer v. 1330 Nineteenth Street Corp., 583 F.Supp. 1580 (D.D.C.1984).
Although the parties have not raised this issue in their pleadings or in oral argument, as previously stated, in such a case where the potential for conflict is so strong, I believe that the duty of this Court is no less than the trial judge to see that the matter is ventilated at the earliest practicable moment prior to trial. While it is not the role of this Court at this stage to make factual or legal determinations on this issue, I would advocate the exercise of this Court’s inherent power as supervisor of the administration of justice in remanding the case to give specific instructions to hold a pre-trial hearing on this issue. Counsel for both sides have peculiar knowledge that relates to crucial facts in dispute in this case. In order to avoid the possibility of a mistrial and a waste of judicial resources that could result if this issue is not resolved prior to trial, the trial judge should make prompt inquiry into this matter by holding a hearing without delay upon remand.
The importance of avoiding problems by conscientious and thorough pre-trial proceedings by the trial judge is reflected in the recent amendments to Fed.R.Civ.P. 16, effective August 1, 1983. Rule 16 now provides for greater judicial management of cases prior to the start of trial in order to see that the case is “disposed of ... more efficiently and with less cost and delay____” Advisory Committee Note to 1983 Amendment. The rule specifically calls for the trial court judge, in the exercise of his or her discretion, to hold a pre-trial conference where many subjects may be discussed, including “such other matters as may aid in the disposition of the action.” Fed.R.Civ.P. 16(c)(11). The importance of pre-trial procedures is also evidenced by the words of Judge Laws, the late Chief Judge of the United States District Court for the District of Columbia:
One of the vital, if not outstanding, advantages of pretrial procedure is to take the trial cases out of the realm of surprise and maneuvering, whereby an unwary counsel might see the just case of his client lost.
Laws, Pre-Trial Procedure, 1 F.R.D. 397 , 399 (1940).
In the case before the Court today, if the trial judge were not to make prompt and efficient inquiry on remand, the potential for unfair surprise is great. In addition, if unresolved problems arise at trial for the first time, the potential for incurable prejudice, resulting in a mistrial, is quite high. Absent comprehensive pretrial procedures, trial judges may be forced to hold complex hearings on issues unrelated to the merits of an action in the middle of trial. It would indeed be unfortunate if the trial judge in this case on remand, were forced to hold a hearing on this crucial ethical question and voir dire the witnesses and lawyers in the middle of trial. Such action would result in undue delay of the trial, added expense to the witnesses, counsel and the parties, and added uncomfort and anxiety to a jury panel that will have to sit and wait while these issues are ironed out. This result would be inconsistent with the duty of the trial court to conduct the trial *362 in the most economical and efficient manner. See Fed.R.Civ.P. 1, 16.
The first question the trial judge must resolve is whether counsel intend to call their legal adversaries as witnesses or whether the lawyers should testify on their respective clients’ behalf. If counsel represent that such situations will not occur, that may end the matter. If counsel represent, however, that the potential does exist, the trial judge should immediately convene a hearing to address the issues and make appropriate findings with respect to this matter. Judge Wald seems to suggest that ethical violations, and perhaps other matters should be dealt with by “admonitions, protective orders, or even, if necessary, by post-trial contempt orders without needlessly delaying proceedings on the merits.” Such advice in this instance, however, appears to ignore the obvious practical problems that a trial judge faces when trying a case. The question remains “how does a judge try a case most effectively and fairly to all parties involved?”. The answer lies in thorough and comprehensive pre-trial procedures that resolve in advance, all of the problems that may be reasonably anticipated or expected to arise at the trial. This is the purpose of Motions in Limine and Fed.R.Civ.P. 16. By promptly resolving such problems, the trial court will be securing the highest quality of justice, in the least amount of time, and at the lowest possible cost to the parties.
Even the Suggestion op Remanding This Case to Another Judge Is Inappropriate
My second concern with Judge Wald’s opinion stems from the implicit allegations made against the trial judge in this case concerning her alleged “one-sided approach” to the case. After a thorough review of the record, I can conclude no more than that she has erred in disqualifying Allis and Butler on the grounds set forth in the majority opinion. I cannot join in such direct or indirect criticism of the competence and fairness of the trial judge. I concur, wholeheartedly, however, with this panel’s decision not to directly remand the case to another judge and desire to express my views more fully because of the potential for havoc such a remand policy would generate upon the effective administration of justice in the trial court.
While appellate courts do have authority to reassign cases on remand “to avoid even the appearance of bias,” see Calvaresi v. United States, 348 U.S. 961 , 75 S.Ct. 522 , 99 L.Ed. 749 (1955); Lewis v. Curtis, 671 F.2d 779, 789 (3d Cir.1982), cert. denied, 459 U.S. 880 , 103 S.Ct. 176 , 74 L.Ed.2d 144 (1982), “such mandatory reassignments should be made infrequently and with the greatest reluctance.” Nobel v. Morchesky, 697 F.2d 97 , 103 n. 11 (3d Cir.1982). “Remand to a different judge is not the usual remedy when error is found in District Court proceedings. Remand to a new judge is reserved for unusual circumstances.” United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir.1979); see also United States v. Medina-Cervantes, 690 F.2d 715, 717 (9th Cir.1982). Without specific and objective evidence that a trial judge, acting in his or her judicial capacity, will be unable to fairly follow the mandates of this Court and apply them in a fair and impartial manner, a remand to another judge, or a direct or indirect suggestion for such action is totally inappropriate in my view. Some courts have declined to remand cases to another judge on the implicit rationale that judges are presumed to be able to act fairly. See e.g., Spivey v. Zant, 683 F.2d 881, 886 (5th Cir.1982) (“We are confident that the District Judge ... is capable of according Spivey the fair hearing to which he is entitled.”); Zweibon v. Mitchell, 606 F.2d 1172 , 1182 n. 57 (D.C.Cir.1979), cert. denied, 453 U.S. 912 , 101 S.Ct. 3147 , 69 L.Ed.2d 997 (1981), rehearing denied, 453 U.S. 928 , 102 S.Ct. 892 , 69 L.Ed.2d 1024 (1981). Certainly, based upon the record, such is the case here. To hold otherwise is to engage in sheer speculation, conjecture and surmise which would be improper.
In Zweibon v. Mitchell, 606 F.2d at 1182 n. 57, this Court recognized that a trial *363 judge should be deemed capable of carrying out his or her judicial obligations:
We decline appellant’s invitation to assign this case to a different judge on remand. We are confident that the District Judge will follow this court’s rulings and will faithfully discharge his judicial obligations.
Even when this Court has found that a trial judge was “disposed against” a party’s claim, it declined to mandate reassignment to another judge. The Court left that decision to the discretion of the District Court under its rules, and the presumption that the trial judge would recuse himself if grounds for such an action existed. See United States v. Barnes, 662 F.2d 777, 783 (D.C.Cir.1980).
The situations in which reassignment has been mandated by this Court are very distinguishable from the case at bar. In Naples v. United States, 307 F.2d 618 (D.C.Cir.1962) (en banc), a case was remanded to a different judge when there existed an “unmistakable” conclusion that the trial judge’s opinion largely reflected the “personal views of the author”, the judge had not cited the relevant precedent in the Circuit, and when the judge re-appointed counsel for a defendant when the lawyer refused to pursue a procedural course of action suggested by the judge. Id. at 629-30 . Even in that case, however, three judges wrote separately to disagree with the decision to remand the case to a different judge. The late Circuit Judge Bastían wrote: Id. at 631-32 . In Bishop v. United States, 349 F.2d 220 (D.C.Cir.1965), cert. denied, 393 U.S. 870 , 89 S.Ct. 158 , 21 L.Ed.2d 139 (1968), a remand to another judge was found to be appropriate when the trial judge had shown “such disregard” for procedures designed to test the validity of a criminal plea, that an “impartial inquiry” was needed. Id. at 221.
Our principal purpose here is to dissociate ourselves from the ruling of the majority that, upon remand, the case must be tried before a different judge. We consider this a reflection on a distinguished member of the District Court whose ability and integrity are well known. We think a reading of the judge’s opinion indicates the meticulous care and attention which he gave to this case. There is no reason to believe that the District Judge would not follow the rules laid down by this court in its majority opinion.
In the case before the Court today, I can find no actions by the trial court judge that rise to such a level justifying a remand to another judge. Her opinion and comments during hearings represent fair comment on the evidence introduced before her in open court which the standardized jury instructions for the District Court assert is appropriate and proper. See Standardized Civil Jury Instruction for the District of Columbia, No. 1-6 (1981). Counsel for appellants in this case seek to “end-run” the tough standards for recusal of judges mandated by Congress in 28 U.S.C. §§ 144 and 455. Such statutes are consistently construed strictly to safeguard the judiciary from frivolous and unwarranted attacks upon its dignity and integrity, to prevent abuse and to insure the orderly functioning of the judicial system. See e.g., Rademacher v. City of Phoenix, 442 F.Supp. 27, 29 (D.Ariz.1977); Town of East Haven v. Eastern Airlines, Inc., 304 F.Supp. 1223 (D.Conn.1969). In addition, the law is clear that bias and prejudice acquired by the Court in its judicial capacity, or indicated by in-court comments prompted by developments in the case or prior legal proceedings, cannot be the basis for recusal. United States v. Grinnell Corp., 384 U.S. 563, 583 , 86 S.Ct. 1698, 1710 , 16 L.Ed.2d 778 (1966); In re International Business Machines Corp., 618 F.2d 923, 929 (2d Cir. 1980) (Bias must be extrajudicial and not based upon in-court rulings.); United States v. Haldeman, 559 F.2d 31, 133 (D.C. Cir.1976), cert. denied, 431 U.S. 933 , 97 S.Ct. 2641 , 53 L.Ed.2d 250 (1977); United States v. Patrick, 542 F.2d 381, 390 (7th Cir.1976), cert. denied, 430 U.S. 931 , 97 S.Ct. 1551 , 51 L.Ed.2d 775 (1977); Wolfson v. Palmieri, 396 F.2d 121 , 124 (2d Cir.1968). Counsel for appellants have not shown any facts *364 raising a colorable claim that the trial judge should have recused herself and did not raise this issue on appeal. There is simply no evidence that the experienced trial judge in this case will be unable to continue to preside over the trial, on remand, with her usual competence, impartiality and good judgment based upon her outstanding record of thirteen years of trial judge experience and her experience in the Corporation Counsel’s Office and the Department of Justice. Based upon long experience as a litigator and as a trial judge, I cannot sanction the use of requests to remand appellate cases to different judges. The time has come to implement the mandate of Congress and remand cases to a different trial judge only on the basis of evidence that would require recusal under 28 U.S.C. §§ 144 and 455. Otherwise, we will be opening a “Pandora’s Box” for countless baseless attacks upon a defenseless judiciary whose independence is essential to the preservation of this republic.
To encourage requests for remands to another judge, would also be encouraging indirect judge shopping, and libelous or slanderous statements directed against both trial and appellate judges. In addition, remands by an appellate court to different judges cause a waste of valuable judicial resources particularly in a case such as this where the trial judge has become familiar with the facts and issues of a case. This factor has been considered by a number of courts and is particularly relevant when the case is a complex one. See United, States v. Robin, 553 F.2d 8, 10 (2d Cir.1977) (en banc); United States v. Medina-Cervantes, 690 F.2d 715, 717 (9th Cir. 1982). Such a remand by an appellate court is also an unnecessary disparagement of the trial judge’s reputation at the bar and may even contribute to the loss of collegiality and her effectiveness. For these reasons, I agree with my colleagues’ decision not to accept appellant’s suggestion to remand to another judge but would omit any implicit suggestion of the possibility of recusal. Such suggestions will only encourage requests for a remand to a different judge on frivolous grounds in the future. The Court’s function is to discourage such a practice except in the most egregious ease.