In re Catherine Connors & judicial integrity that can’t reasonably be questioned.
Posted by Ed Folsom, March 3, 2026.
On February 26, 2026, in In Re Catherine R. Connors, a panel of judges ruled that Maine Supreme Judicial Court Associate Justice Catherine Connors did not violate the Maine Code of Judicial Conduct, as the Maine Committee on Judicial Conduct had accused her of doing. According to a majority of the 5-judge panel, the cases Connors participated in were not “proceedings in which the judge’s impartiality might reasonably be questioned,” under Cannon 2, Rule 2.11(A), of the Code. While the decision probably doesn’t do much to undermine judicial impartiality in fact, it might further undermine the public’s perception of judges as impartial arbiters of law. And isn’t trust in the impartiality of judges a big part of what Rule 2.11(A) is intended to protect?
Connors’ 2017 activities as an attorney, and the Law Court’s, “Bank error: you get a free house” doctrine.
The story involves a couple of boring mortgage foreclosure cases, Pushard and Deschaine, decided by the Maine Supreme Judicial Court (the Law Court) in 2017. A Maine statute that governs mortgage foreclosures on occupied residences, 14 M.R.S. §6111(1), states that a mortgage holder “may not accelerate . . . or otherwise enforce the mortgage” unless it first complies with statutory requirements for notice to the mortgage borrower. When the borrowers in Pushard and Deschaine defaulted on their mortgages, the mortgage holders sought to accelerate the full amount due and foreclose. But they failed to provide foreclosure notice to the borrowers that met statutory requirements.
In effect, the Law Court ruled that a mortgage holder who seeks to foreclose but whose notice to the borrower is somehow defective is out of luck. Not only does the foreclosure effort fail, but the defect in notice cannot be cured. The mortgage holder must discharge the mortgage and transfer mortgage-free title to the borrower — the end. In other words, a statutorily defective notice results in the defaulting borrower getting a free house, or at least a house free from the remainder of what was once the loan obligation.
When Pushard and Deschaine were decided, Catherine Connors was a lawyer handling a lot of appellate work as a partner at Pierce Atwood in Portland. One of Pierce Atwood’s clients was the Maine Bankers Association. Connors wrote an amicus or “friend of the court” brief in their behalf in the Deschaine case. In that brief, Connors argued that Maine law does not dictate that a lender is permanently out of luck because of a defect in statutory notice requirements, that Maine law does not require the lender to hand over the house free and clear of the loan obligation without further recourse. The Law Court ruled against Connors’ position unanimously. A free house it was!
Connors’ is appointed as an Associate Law Court Justice.
That was in 2017. In 2020, Connors was nominated for her current job as an Associate Justice of the Law Court. During her confirmation hearings, certain legislators expressed concern about her background as a lawyer for banks and banking interests. They asked her what she would do if former Pierce Atwood clients came before the Law Court when she was on the bench. She answered that she would recuse herself from cases involving Pierce Atwood clients and cases, and that she would probably recuse from cases involving former clients whom she represented in amicus briefs in foreclosure litigation appeals at Pierce Atwood. The Maine Legislature confirmed her for the position.
In 2022, the Finch and Moulton cases came before the Law Court. These cases involved banks that failed to meet statutory notice requirements while attempting to foreclose on defaulted mortgages, again raising the issues previously decided in Pushard and Deschaine. Associate Justice Connors participated in the proceedings in both cases.
While nobody involved in Finch or Moulton asked Connors to recuse herself, Connors had her own questions about her ethical position. Connors’ former amicus client in the Deschaine case, Maine Bankers Association, filed an amicus brief in Moulton. At that point, Connors had already participated in the oral argument in Finch. She reached out to the Judicial Advisory Committee on Ethics for advice on how to proceed.
Connors pointed out to the Advisory Committee that she had recused herself from every mortgage foreclosure appeal that had come before the Law Court for her first two years. She also pointed out that Maine Bankers had now filed an amicus brief in Moulton and that she had represented Maine Bankers on their amicus brief in Deschaine involving the same set of mortgage foreclosure issues. The Advisory Committee advised Connors that she was not required to recuse herself because the Finch and Moulton cases were “totally” separate from the 2017 Deschaine and Pushard cases.
Ultimately, the Law Court’s decisions in Finch and then in Moulton reversed its previous decisions in Deschaine and Pushard. The Court ruled that §6111(1)’s bar against in any way enforcing a mortgage if the notice is defective means that foreclosure proceedings simply cannot proceed when there is a defect in notice. A court cannot rule against the mortgage holder and order it to award the borrower a free house when notice is defective because no foreclosure action can proceed unless and until statutorily-required notice is provided. Finch was decided 4-3, with Connors in the majority. Moulton then followed suit based on the new precedent set in Finch.
Ethics proceedings are commenced against Connors for failing to recuse herself from Finch and Moulton.
Having lost out in the Law Court’s reversal of precedent, Finch’s attorney, Thomas Cox, filed an ethics complaint against Connors with the Maine Committee on Judicial Conduct, alleging that she should have recused herself.
The Judicial Conduct Committee agreed with Cox and filed a report with the Supreme Judicial Court to pursue ethics proceedings against Connors. Because the Supreme Judicial Court was concerned about its own ethical ramifications for sitting in ethical judgment of a fellow Justice, it created a new process for handling ethics complaints against its own members. The process involves assembling panels of non-S.J.C. judges to hear and resolve such matters. It was just such a panel that rendered the February 26, 2026 decision in In Re Catherine R. Connors.
The decision in In Re Catherine R. Connors.
The rule that attorney Cox and the Committee on Judicial Conduct alleged that Connors violated; the same rule that Connors herself wondered if she might violate by participating in Finch and Moulton; the rule that the Ethics Advisory Committee informed Connors she was not violating by participating in Finch and Moulton; and the rule that a 3-judge majority of the 5-judge panel in In Re Catherine R. Connors decided that Connors did not in fact violate, is Rule 2.11(A) of Cannon 2 of the Maine Rules of Judicial Conduct.
As the In Re Catherine R. Connors majority pointed out, “Canon 2 provides that ‘[a] judge shall perform the duties of judicial office impartially, competently, and diligently.’”
Rule 2.11(A) itself provides:
(A) A judge shall disqualify or recuse himself or herself in any proceedings in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or the judge has personal knowledge of facts that are in dispute in the proceeding when the personal knowledge that would form the basis for disqualification has been gained outside the regular course of present or prior judicial proceedings.
(2) The judge knows that the judge, individually or as a fiduciary, the judge’s spouse, domestic partner, a person within the third degree of relationship to either of them, or any other member of the judge’s family residing in the judge’s household
(a) Is a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
(b) Is acting as a lawyer in the proceeding;
(c) Is a person who has more than a de minimis interest that could be substantially affected by the proceeding; or
(d) Is likely to be a material witness in the proceeding.
(3) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, judicial opinion, or judicial administrative matter, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.
(4) The judge
(a) Served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;
(b) Served in government employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding or has publicly expressed in such capacity an opinion concerning the merit of the particular matter in controversy; or
(c) Was a material witness concerning the matter.
The Committee on Judicial Conduct’s report alleged that Connors violated the catch-all provision of Rule 2.11(A) by failing to recuse herself in Finch and Moulton because her “impartiality might reasonably be questioned.” The 5-judge panel had to decide whether Connors’ impartiality might reasonably have been questioned given her prior involvement as a lawyer litigating issues raised in those cases, and specifically given her prior, amicus, representation of Maine Bankers regarding similar issues.
A majority of the panel ruled that Connors’ failure to recuse herself did not violate Rule 2.11(A), because her impartiality could not reasonably be questioned. In a concurrence, the panel minority would have ruled that Connors’ impartiality might reasonably have been questioned, emphasizing that the Rule’s use of the word “might” sets a very low bar. Nevertheless, the concurring judges determined that the report against Connors should be dismissed because no disciplinary action is warranted in the circumstances. In other words, all 5 judges agreed that the report should be dismissed, but for different reasons.
The panel majority reasoned that the meaning of the catch-all provision regarding impartiality that “might reasonably be questioned” has to be informed by the more specific disqualifiers set out in the rule requiring recusal. Justice Connors was clearly not disqualified by any of the specific disqualifiers set out in Rule 2.11(A)(1)-(3). She had no personal bias against litigants or insider knowledge; no family or business relationship with litigants or parties; and had not made any public statements as a judge or judicial candidate that appeared to commit her to rule in a particular way.
As for subsection 4, Connors was not a material witness in the Finch or Moulton cases, and she had never served as an attorney in the “matter in controversy” in either case. Within the meaning of Rule 2.11(A)(4), the “matter in controversy” is the particular dispute between the particular parties, not any broader matter of the legal issues raised by that dispute. Because Connors never acted as an attorney in the particular disputes at issue in Finch and Moulton, she was never an attorney in the “matter in controversy.”
That, the majority concluded, tells us that the Rule’s drafters did not intend Connors’ circumstances to require recusal. Yes, Connors previously represented the Maine Bankers Association in a matter involving similar issues, but in this connection, the panel pointed out:
“The drafters of Rule 2.11(A) could easily have included the circumstances of (1) a prior client appearing before a judge on any matter or (2) a legal issue the judge previously litigated coming before the judge as specific examples requiring the judge to recuse but did not.”
Connors therefore was not required to recuse under Rule 2.11(A)’s catch-all requirement covering “any proceedings in which the judge’s impartiality might reasonably be questioned.”
The majority augmented this determination with the following observations from cases in other courts:
“There is also a presumption that judges will fulfill their duty of impartiality faithfully. Our government is a government of laws and not of men. In addition to their legal learning, judges are presumably selected because of their ability to lay aside personal prejudices and to hold the scales of justice evenly. The presumption is that they will do so. The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults.” (Citations to the quoted cases and internal quotation marks omitted).
In other words, part of deciding whether Connors’ impartiality might reasonably be questioned, under Rule 2.11(A), involves presuming that Connors fulfilled her duty of impartiality faithfully.
There you have it! Because the circumstance showed that Connors’ impartiality could not reasonably have been questioned, the panel majority dismissed the disciplinary proceedings against her.
Does this judicial ethics rule serve the reasons it exists?
What’s going on here?
The first job of Rule 2.11(A) must be to clearly, effectively instruct judges when they are required to recuse themselves from a case because of a question of impartiality. This should serve a dual purpose: (1) to in fact protect the system from corrupting failures of judicial impartiality and (2) to assure the public that the system is keeping itself free from such corrupting failures. On its face, a requirement of recusal any time a “judge’s impartiality might reasonably be questioned” appears to instruct judges to recuse whenever a reasonable observer might reasonably detect the appearance of impropriety in the form of judicial partiality.
But the Connors case tells us that isn’t what the rule actually means. Judges now know that they are not required to recuse even when many people — including the panel’s 2 concurring judges, and the lawyers, judges and others on the Committee on Judicial Conduct — believe it is reasonable to question the judge’s impartiality. While the panel majority’s anti-literalist interpretation might not undermine the integrity of the judicial system in fact, it does appear that the public might have been hoodwinked by a rule purporting to protect them against official corruption that doesn’t mean what it appears to mean. Is this good for the judicial system? How does it increase public confidence in a system whose legitimacy depends on public confidence, for the system to appear to make promises about its legitimacy that it does not keep?
Don’t get me wrong. I don’t suppose that an appellate judge who handled mortgage foreclosure cases for banks as an attorney should, simply because of that, be required to recuse from mortgage foreclosure cases, even from cases involving a party that was once a client. But is it really not reasonable for reasonable people to question Connors’ impartiality here?
If the recusal rule doesn’t mean what it appears to mean, it should say something other than what it says. As a principle of law versus poetry or allusion, the rule should say exactly what it means and nothing more. Then everyone, judge and public alike, would know exactly what it means, and nobody would feel hoodwinked by an empty promise. After all, feeling duped by an institution is a bad foundation for trust in its integrity.
Is there a gulf between the common understanding of the word “impartiality” and what the ethics rules mean by it? Is that the problem?
Maybe the problem lies more in what Rule 2.11(A) means by “impartiality” than anything else. Is there a chasm between what the rule means by “impartiality” and the common understanding of the term that makes it unreasonable for people to question Connors’ impartiality?
Rule 2.11(A)’s drafters apparently agree that personal bias or prejudice toward litigants or parties is something that undermines a judge’s impartiality. Also, that having a close family relationship to litigants, to parties, or to a material witness has a strong tendency to undermine a judge’s impartiality. And having previously represented one or another side in the same, particular, legal dispute has a recognized tendency to undermine the judge’s impartiality. The drafters dealt expressly with those circumstances in Rule 2.11(A)(1),(2) and (4), making them explicit grounds for mandatory recusal.
A thought experiment to cast doubt on In Re Catherine R. Connors and argue for ethics rules that say exactly what they mean — no more and no less – in language we can all understand.
What is subsection 3 of Rule 2.11(A) getting at? That subsection requires a judge to recuse if the judge has made a public statement that “appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.” Suppose U.S. Supreme Court Justices were bound by Rule 2.11(A) and the issue before the Court is whether the U.S. Constitution protects a right to abortion. One or more of the Justices has made a public statement that appears to commit that Justice to rule that the U.S. Constitution protects a right to abortion. Is that Justice required to recuse? What if another Justice has made a public statement that appears to commit the Justice to rule that the Constitution protects no such right? Is that Justice required to recuse?
Rule 2.11(A)(3) says a Justice is only required to recuse if the statement was made when the judge was already a judge or judicial candidate, and in a setting “other than in a court proceeding, judicial decision, judicial opinion, or judicial administrative matter.” So, if the public statement was made in a court proceeding, judicial decision, judicial opinion or judicial administrative matter, subsection 3 does not require recusal. Why? Why can the justice’s impartiality not legitimately be questioned over a public statement made in a court proceeding, judicial decision, judicial opinion, or judicial administrative matter that appears to commit the judge to reach a particular result or rule in a particular way, when the same public statement would clearly and automatically call a judge’s impartiality into question and require recusal if made outside a judicial setting?
If publicly expressing certain opinions or ideological positions on the law makes a judge appear committed to rule a particular way on a particular controversy, why does it matter whether the judge demonstrates the lack of impartiality by making public statement outside the judicial setting or inside it? An absence of judicial impartiality in the way of a commitment to reach a particular result is an absence of judicial impartiality, isn’t it? Why isn’t a strong dissenting opinion that leaves no question about how a judge will rule on the issue the next time it comes up evidence of impartiality that requires recusal the next time the question comes up? How about a strongly-expressed commitment to stare decisis on a hot-button issue, in which forceful arguments are presented for reversing precedent? Isn’t a commitment, or even a strong predisposition to rule a particular way the definition of being partial, no matter the underlying reason?
Note, too, that Rule 2.11(A)(3) does not require a judge to recuse because the judge in fact holds an opinion or ideological position that predisposes or determines that the judge will rule a particular way. The subsection doesn’t seem to be concerned with actual impartiality, only with the appearance of impartiality. In other words, it appears to be concerned only with bad looks that undermine confidence in the courts; with form regardless of substance, the kind of problem Connors’ case presented unless Connors’ case involved more than that.
Why wouldn’t a judge be required to recuse based on private statements, or on statements made as a lawyer shortly before becoming a judicial candidate, or on public statements made in a judicial setting, if those statements show that the judge intends to rule in a particular way – not because the statements themselves commit or appear to commit the judge to rule in a particular way but because the statements are evidence that the judge intends to rule in a particular way? Doesn’t the catch-all provision of Rule 2.11(A), that a judge must recuse “in any proceedings in which the judge’s impartiality might reasonably be questioned,” require recusal in such circumstances, regardless that the specific provisions of subsection 3 do not include statements made in a private setting, or statements made by a lawyer who is not yet a judicial candidate, or public statements made in a judicial setting?
If not for In Re Catherine R. Connors, I might have thought these reasons to question a judge’s impartiality were reasonable and therefore require recusal under the catch-all provision of Rule 2.11(A). But In Re Catherin R. Connors reminds me that if the rule’s drafters had intended to include such circumstances among those requiring recusal they could easily have done so instead of limiting subsection 3 as they did. Therefore, the judge’s impartiality cannot reasonably be questioned, right?
What to do.
The courts need to somehow do a better job of explaining what they consider to be the “impartiality” expected of judges. Then people can better understand why it isn’t reasonable to question a judge’s impartiality when it looks to them like a judge might not be impartial because of public statements or positions publicly taken. After all, given that a lot of this seems to be more about appearances than substance, it would be a good idea to at least get the appearances right.
Granted, judges are fellow humans who don’t exist without personal and professional opinions and philosophies. While “impartiality” can’t realistically mean blank-slate, perfect equipoise, it does mean something even though it clearly doesn’t mean some things that reasonable people take it to mean. If being partial doesn’t mean simply holding personal or professional opinions or philosophies that push a judge out of blank-slate equipoise, what does impartiality mean? Can we possibly be more specific?
Many people are already so cynical about impartiality and judges that a substantial number advocate expanding the size of the U.S. Supreme Court and packing it with ideological kindred spirits to assure the outcomes they desire. In other words, they have already concluded that impartiality is a myth – “So let’s just cut to the chase and make sure our side always wins!”
In re Catherine Connors might reach the right result, but it is unsatisfying. I suspect that it’s more likely to contribute to public cynicism than to increase public confidence in the courts.
Courts need clearer ethics rules, so judges can be more certain when recusal is required and the public can know when and why it isn’t reasonable to question a judge’s impartiality.
Clearer rules. Better guidance. More legitimacy.
