HERBERT A. ROSS
U.S. Bankruptcy Judge

        Creditor, Richards & Johnson, moved that I disqualify myself as judge in this case or for an explanation of any safeguards which have been undertaken due to the fact that my present law clerk, M. Jane Pettigrew, represented the debtor in this case before she became my law clerk.

        There is presently an issue pending in this case concerning the enforceability of a covenant not to compete against the debtor who has been discharged in bankruptcy. The United States District Court reversed this court's initial ruling for debtor and remanded the matter back to this court for further     1 ABR 514  findings. M. Jane Pettigrew represented debtor before she became my clerk and was the prevailing attorney under my first ruling. She has had no participation in the merits of this case since she has become my law clerk. Her husband, M. Greg Oczkus, who was her law partner before she became my clerk, is currently representing the debtor in the matter. Because of the obvious conflict, Ms. Pettigrew and I do not talk about the merits this and any other cases in which she has been involved as an attorney.

        Disqualification of a bankruptcy judge is governed by Bankruptcy Rule 5004(a) which incorporates 28 U.S.C. § 455. § 455(a) requires a federal judge to disqualify himself where his impartiality might reasonably be questioned. § 455(b) lists a number of specific instances where disqualification is mandatory. These include: (1) where the judge is personally biased against a party or has personal knowledge of disputed facts; (2) where as a government or private lawyer the judge was involved in the matter at controversy before the judge; and, (3) where the judge or a close family member has a financial interest, is related to a party to the proceeding, or may be a witness.

        Most of the reported cases involving law clerks are situations where the law clerk later became or is about to become employed with a law firm litigating before the court. In these cases, where the law clerk has not participated in the matter to any significant extent, there is no requirement of disqualification. See Hunt v. American Bank & Trust Co. of Baton Rouge, 783 F.2d 1011, 1015-16 (11th Cir. 1986) ("If a clerk has a     1 ABR 515  possible conflict of interest, it is the clerk, not the judge, who must be disqualified. We do not believe that a law clerk's acceptance of future employment with a law firm would cause a reasonable person to doubt the judge's impartiality so long as the law clerk refrains from participating in cases involving the firm in question." [citations omitted]).

        The law clerk lives by the same disqualification standards as the judge. If the law clerk should be disqualified, and the judge still allows the law clerk to participate in the case, the rulings of the judge may be subject to challenge. Hall v. Small Business Admin., 695 F.2d 175 (5th Cir. 1983) (a magistrate should have isolated his law clerk from the case immediately after he learned his law clerk was interviewing with the firm representing one of the parties; since he did not, the appearance of partiality required vacation of a judgment against the other party and recusal of the magistrate).

        In this matter I ruled for the debtor, Ms. Pettigrew's client before she became a law clerk. She has never participated in the decisions, research or discussions in this case since she became my law clerk. Ms. Pettigrew routinely disqualifies herself from working on any case she was involved in when she was in private practice or in which her husband now is involved in. Therefore, there is no need to recuse or disqualify myself in this case.

        IT IS ORDERED that the motion to disqualify is DENIED.

    1 ABR 516 
       DATED:    May 8, 1991.

HERBERT A. ROSS
Bankruptcy Judge

Serve:
Kenneth B. Ringstad, Esq. for Richards & Johnson
M. Greg Oczkus, Esq. for Debtor
U.S. Trustee