Concurring and Dissenting:

• A judge must not only be impartial in his or her approach to a case, but a judge must also avoid the appearance of partiality. Canon 2B. of the Code of Conduct for United States Judges reads in relevant part as follows:

As Charles Alan Wright puts it, “Because the federal judge is given such extensive power over litigation before him, it is especially important that he not only be but seem impartial.” Wright, “Law of Federal Courts,” § 97 (emphasis added). 28 U.S.C. § 455 (a) pertaining to the disqualification of a judge says, “Any ... judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Anything less than this antiseptic approach to judging undermines public confidence in our system of justice, and without public confidence in the basic fairness of our system, it would soon crumble. This is one of the inescapable lessons of history that the noted historian Santayana admonishes us to respect, or reap the harvest that follows. Most of us are willing to accept losing in court if we believe the contest has been fairly run, but it is to the proverbial streets if we believe we have not been given a fair shake.

As Judge Leavy observes, this case does indeed involve an unfortunate series of incidents. There is little doubt that Mr. Sandlin overreacted to his discovery of a change in the transcript of the hearing. Judge Leavy’s analysis, of Mr. Sandlin’s breach of L.R. 1.2(f)(2) and WSRPC 8.2(a) is surely correct. Nevertheless, for reasons that I will now explain, I believe the sanction imposed on Mr. Sandlin was manifestly excessive, and I would reverse the sanction imposed and remand for nothing more severe than a written reprimand.

With all respect, the genesis of this unfortunate incident was the imperfect handling by the district judge of his personal relationship with the witness Mr. Smith. According to an unchallenged statement by Mr. Sandlin in an FBI report 1 as Mr. Smith approached the witness stand, he and the district judge “smiled at each other, nodded their heads, and greeted each other verbally.” This greeting as noted by Judge Leavy appeared to Mr. Sandlin to be of friends.

Based on these observations, Mr. Sandlin inquired of Mr. Smith on the subject of his relationship with the district judge. Here from the unedited record is how it went:

In my respectful judgment, the district judge made the following mistakes.

First, by his greeting and. acknowledgment of Mr. Smith, the district judge demonstrated a relationship with a witness which one could rationally conclude was both personal and favorable. Any lawyer in Mr. Sandlin’s position would have reason to be concerned, and reason to inquire. A judge must'not display partiality to any witness. I’m certain it was not the judge’s intention to do so, but nonetheless it attracted Mr. Sandlin’s attention.

Second, instead of realizing the impact of the appearance he had just created, the district judge reacted somewhat sharply and blocked Mr. Sandlin from trying to find out if there was a problem that went beyond appearances. Moreover, instead of dousing the flames of Mr. Sandlin’s concern, the district judge inappropriately brought Mr. Smith’s father into the picture and suggested it was a distinct honor to have known him. This can only be seen as playing to the witness, because Mr. Smith’s father — and whether it was an honor to have known him — had nothing whatsoever to do with the case. Such a statement clearly raises the specter of favoritism. Moreover, what Mr. Smith and his family might know they could expect from the judge cannot be imputed to Mr. Sandlin and his client. In these- circumstances, a judge would be well advised to notify the opposing party of his personal relationship with thé party’s opponent before it becomes an issue.

Third, the district, court told Mr. Sandlin it was “totally improper” for him to explore this relationship. I disagree. In view of the manner in which the judge and the witness had just greeted each other, Mr. Sandlin had every.right on behalf, of his client to air this out. He would have been derelict not to pursue it. The judge himself should have taken the initiative to clear the air.

Fourth, the district judge was wrong when he told Mr. Sandlin his inquiry was not timely. Ordinarily this assessment would have been true, but it was not until Mr. Smith was greeted by the district judge that Mr. Sand-lin had grounds for concern. Should Mr. Sandlin have waited until the hearing was over? , What other viable option did he have? The issue of the temporary restraining order was in the balance. The issue of recusal had just arisen. 28 U.S.C. sections 144 (which uses the word “whenever”) and 455 must be construed to permit a litigant the opportunity to explore a judge’s partiality when the issue unexpectedly arises. I note that at all times Mr. Sandlin was polite and non-argumentative. He accepted the judge’s admonition to drop the subject and went on with the hearing.

After the hearing, however, and at the behest of his client who believed the judge’s behavior had been partial towards the Smiths, Mr. Sandlin discovered that the district judge while in private practice had represented Mr. Smith’s brother and current co-owner of the plaintiff laundry in a wrongful death action. Having been shunted aside in court when he brought up recusal and told by the district judge that his method and timing-were inappropriate, Mr. Sandlin then filed a formal motion for recusal. I can find nothing so far that merits criticism or censure of Mr. Sandlin. Yes, he may have misheard or misinterpreted the district judge’s comments, but what the district judge did. say was entirely consistent with Mr. Sandlin’s apprehension that the district judge was favorably *870 disposed to the Smith family, including then-father.

Then another mistake came to light which aggravated everything: the district judge had ordered a change in the transcript of the hearing, called “do-overs” by the reporter. Apparently this was a routine practice in his court. This is a procedure, however, for which there is no lawful justification even though the changes may have been “editorial” and not substantively significant. 28 U.S.C. § 753 (b) contemplates that the official transcript shall be nothing short of verbatim.

Mr. Sandlin then went not to the newspapers or the public soapbox, but to the authorities responsible for alleged official misconduct: the U.S. Attorney,' the FBI, and the Public Integrity Section of the Criminal Division of the Department of Justice. He is certainly correct when he cites the First Amendment for the proposition that he has a right to petition the Government for a redress of grievances. Although he may have far exceeded his proof and misstated his case, he cannot be faulted for reporting alterations in an official transcript to the proper authorities. Moreover, Mr. Sandlin did nothing publicly to denigrate the honor of the court or the district judge. The parties to whom he did go are bound by the law to keep their inquiry private. Indeed, none of this became public information until Judge McDonald lodged his complaint against Mr. Sandlin.

Thus, the district court was not entirely without responsibility for this situation. Had the court been more sensitive to its own conduct, this situation most probably would not have lurched out of control. Because the sanction of suspension is so draconian, I believe under these circumstances it is manifestly out of proportion to the offense.

Surely none of us enjoys being investigated by the FBI and the Public Integrity Section. But, when we have contributed to our own problem, we must see ourselves not as we would like to see ourselves, but as others might see us, especially when we create an appearance of partiality that is menacing to the people whose legal fates we control.

I sympathize with the district judge. There is no doubt he ruled in the hearing as he said he would, impartially and as he saw the law and the facts. Moreover, there is no substantial evidence in the record that he ordered deleted from the transcript a statement to the effect that Smith would be a truthful witness. No one likes to have his integrity questioned as no doubt the district court judge believed Mr. Sandlin was doing when he began his inquiry of Mr. Smith. Mr. Sandlin, whose mistakes have been well exposed by Judge Leavy, has written a formal letter of apology to the district judge. In retrospect, I believe the district judge will recognize the unintended appearance he created. Under the circumstances, I would also hope that the severity of the sanction imposed by Judges Quackenbush and McNi-chols- would be reconsidered and that it would be reduced to a written reprimand.

. Sandlin's Exhibit 14, a seven-page' FBI 302 Report of a statement made by .Mr. Sandlin to FBI Special Agent Oris E. Kirk, admitted in evidence without objection.