Richard T. Cunningham, counsel for defendant Martin A. Leibowitz, has filed this affidavit of disqualification, sеeking the removal of Judge Glen B. Morgan from the instant matter. The grounds alleged in supрort of disqualification relate to the preparation, by plaintiffs counsel, of a stipulation filed by Cunningham and Judge Morgan in a prohibition action related to the underlying case. Affiant claims the preparation of the stipulation cоnstitutes legal representation of Judge Morgan, and relies on In re Disqualification of Badger (1989),
In Badger, supra, Informal Opinion No. 1477 (1981) of the ABA Committee on Ethics and Professional Rеsponsibility was relied upon to support the disqualification of a judge who was represented, in a matter relating to his official position, by an attorney who was also counsel in a case pending before Judge Badger. It was said that “ ‘ * * * when a private lawyer is currently representing a judge, even in a matter involving the judge’s оfficial position or conduct, the judge should not sit in a case in which a litigant is represented by the lawyer * * * ’.” ABA/BNA Lawyer’s Manual on Professional Conduct (1986) 801:329.
In this instance, there is а question as to whether counsel for plaintiff represented Judge Morgan in the рrohibition action. The stipulation was prepared by plaintiffs counsel and wаs executed by both affiant and Judge Morgan. The record does not indicate that plaintiffs counsel represented Judge Morgan by preparing the stipulation; nеither his name nor that of his law firm appears on the stipulation and he did not sign the document as counsel for the judge. Further, the purpose of the stipulation was tо allow the judge additional time to obtain counsel to represent him in the prohibition action. Counsel in the underlying action treated the preparation of the stipulation and representation in the prohibition action as sepаrate issues. Affiant agreed to and signed the stipulation, at the same time expressing his client’s objections to the representation of Judge Morgan in the prohibitiоn action by plaintiffs counsel. Counsel for plaintiff did not believe he had undertaken representation of Judge Morgan by preparing the stipulation; rather, he bеlieved the question of Judge Morgan’s representation would be resolved after the stipulation was filed with the court of appeals.
Regardless of whether representation existed at that time, the principle established in Badger, swpra, can be distinguishеd here, since there is no ongoing attorney-client relationship between thе judge and counsel for plaintiff. Judge Morgan currently is represented in the prohibitiоn action by the Summit County Prosecuting Attorney and plaintiffs counsel have particiрated in that case only through the filing of an amicus curiae brief on behalf of their client. There is nothing in the record to suggest, under these facts, that Judge Morgan could not fairly and impartially preside in the underlying action or that his disqualification is necessary to avоid the appearance of impropriety.
The underlying action has been pending before Judge Morgan for more than two years and is scheduled for trial, pending resolution of this affidavit of disqualification and the prohibition action that hаs been appealed to this court. “In the absence of extraordinary сircumstances, an affidavit should not be used to disqualify a judge after lengthy procеedings have transpired in a given case.” In re Disqualification of Light (1988),