When may a new probate judge hear former wards' cases, and may he reappoint a former firm associate as conservator?

Plain-English summary

A new probate judge had served as guardian and federal fiduciary or payee for protected persons. He had also worked at a law firm whose associate his predecessor had appointed general conservator; the judge had severed financial ties to the firm except for a fixed retirement-plan interest.

The Commission required recusal from former wards' and payees' cases for two years after the fiduciary relationship ended, even if the judge had not acted as their lawyer. It also required recusal without that time limit for matters litigated during his fiduciary service, personal bias or prejudice, or personal knowledge of disputed facts. Canon 3C(1)(b) separately barred cases in which a lawyer from his former firm had served in the same matter while they practiced together.

The Commission allowed reappointment of the former firm associate as general conservator because the candidate had been selected by the prior judge, was apparently qualified, and no ongoing financial tie remained. The judge's plan to avoid former-firm matters for one year went beyond what the Canons required; existing clerk and special-judge procedures made it feasible on the described docket.

Currency note

This opinion was issued in 2001, after the Alabama Supreme Court's 1975 adoption of the Alabama Canons of Judicial Ethics. Subsequent amendments or later opinions may have changed the analysis. Treat this page as historical context and verify the current Canons and linked opinion before relying on its conclusions.

Common questions

Q: How long did the former fiduciary relationship itself disqualify the judge?

A: For two years after it ceased, for cases involving the former ward or payee.

Q: Did the Commission permit reappointing the former colleague?

A: Yes, on the stated qualification, financial-separation, and court-operation facts.

Q: Was the voluntary one-year former-firm recusal required?

A: No. The Commission said that extra period was not required by the Canons, though it fit their spirit where feasible.

Background and rules framework

The opinion applied Alabama Canons 3C(1), 3C(1)(a), and 3C(1)(b) to fiduciary history and prior law-firm matters. It applied Canons 2A and 3B(4) to a merit-based conservator appointment and discussed Canon 1 in assessing the voluntary former-firm separation.

Citations and references

The opinion cites Alabama Canons 1, 2A, 3B(4), 3C(1), 3C(1)(a), and 3C(1)(b); Rushing v. City of Georgiana, 361 So. 2d 11 (Ala. 1978); In re Sheffield, 465 So. 2d 350 (Ala. 1984); Ex parte Duncan, 638 So. 2d 1332 (Ala. 1994); and Advisory Opinions 86-270, 86-285, 87-306, 98-707, and 99-740.

See also

• AL Judicial Ethics Op. 01-777: Temporary Probate Judge Appointment

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 01-770

• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: JANUARY 31, 2001 ADVISORY OPINION 01-770
DISQUALIFICATION OF PROBATE
JUDGE TO HEAR CASES DUE TO PAST
SERVICE AS PARTY’S GUARDIAN OR
FEDER AL FIDUCIARY/PAYEE;
APPOINTMENT OF FORMER LAW FIRM
A S S O C I A T E A S G E N E R A L
CONSERVATOR
ISSUES
I. Is a probate judge disqualified to hear a
case involving a party where he previously
served as the party’s guardian or federal
fiduciary/payee? Answer: The judge should
not hear such a case for a period of two years
and, in any event, may not hear such a case if
it involves a matter previously litigated while
he served in either capacity, if he has a
personal bias or prejudice, or if he has
personal knowledge of disputed evidentiary
facts.
II. May a probate judge reappoint as the
general conservator for his county an
individual who is associated with the law firm
of which he was a member before he became
the probate judge? Answer: Yes.
FACTS
A new probate judge has served in the past as
the guardian of certain persons, by
appointment of the probate court. Many of
these individuals have been patients at Searcy
Hospital. In this role as guardian, he did not
serve as the protected person’s lawyer. His
function was to make decisions regarding
medical care and treatment when called upon
to do so.
The judge also has previously served in a
number of cases as a federal fiduciary/payee
by designation from the United States Social
Security Administration and/or the United
States Administration for Veteran Affairs. In
this capacity, he received and distributed the
funds of the protected persons under the
supervision of the Social Security
Administration or the Department of Veteran
Affairs. In some cases, he provided legal
assistancetopersons for whom he was serving
as fiduciary/payee.
The new judge served as the general
conservator for the county for about two-and-
a-half years, by appointment by the former
probate judge. About two months before the
new judge took office, the former probate
judge appointed another lawyer to serve as the
general conservator. The person the former
probate judge appointed is associated with the
law firm of which the new probate judge was
a member prior to becoming the probate
judge. By statute, the term of office of a
general conservator ends with the term of the
appointing probate judge unless he or she is
reappointed. The new probate judgewishes to
reappoint the lawyer his predecessor
appointed in November.
A statutory scheme provides a list of persons
eligible to serve as conservator in an
individual case. Typically, family members
serve in this position and, generally speaking,
the closer the relationship the person has to
the person to be protected, the higher priority
that person has in terms of being named
conservator. By statute, the general
conservator is appointed by the probate judge
ADVISORY OPINION 01-770
PAGE 2
to serve as the conservator when no other fit
person applies for appointment and qualifies.
There is no compensation to a general
conservatorsimplyforservinginthatposition.
However, if appointed in an individual case,
the general conservator is entitled to a
commission for services performed. In the
county in question, the amount of the
commission hastraditionallybeendetermined
by applying a formula of 2.5% of the cash
assets coming into the estate during the
conservator’s tenure and 2.5% of the cash
disbursementsduringtheconservator’stenure,
excluding any transfers between accounts. In
addition, the conservator is authorized to hire
professionals to perform services on behalf of
the protected person and to pay those persons
a reasonable amount for services rendered; if
the conservator is a lawyer, he can hire
himself to provide legal services. In the
county in question, there has been an
understanding,whichthenewjudgeintends to
continue, that the rate the general conservator
charges forlegalserviceswill notexceed$150
per hour.
Alabama law requires a conservator to submit
a partial settlement every three years in a
conservatorship case, as well as a final
settlement when the conservatorship
proceeding terminates. In this process, a
complete audit of the conservator’s accounts
is performed and presented to the probate
court for review, with notice to the surety and
all interested parties. A guardian ad litem is
also appointed to represent the interests of the
protected person in the settlement process,
during which the probate court will consider
and approve or disapprove the conservator’s
commissions and expenditures. The probate
court can order the conservator to reimburse
the estate for the amount of any expenditure it
finds to have been improvident. At the time
of the final settlement, the probate court can
correct any error that is found to have
occurred at any time during the
conservatorship proceeding.
Before his resignation from his former law
firm, the new judge arranged to sever his
financial ties with the firm. When he resigned
from the firm before taking office, his interest
in the firm’s 401K retirement plan became
fixed. He is not eligible to receive any
additional contributions from the law firm,
and will be able to receive his interest in the
plan on or about April 1, 2001. He had no
ongoing financial interest in the firm at the
time he took office.
The judge intends to recuse himself from all
matters involving his former law firm for a
period of one year. By statute, the chief clerk
of a probate court may hear uncontested
matters. Because there are too many cases in
the county for one probate judge to hear, there
already is a system in place of attorneys who
regularly hear probate cases as special judges.
DISCUSSION
Canon 3C(1) provides, in pertinent part, as
follows:
A judge should disqualify himself in a
proceeding in which his impartiality...
might reasonably be questioned,
including but not limited to instances
where:
(a) He has a personal bias or
prejudice concerning a party, or
personal knowledge of disputed
ADVISORY OPINION 01-770
PAGE 3
evidentiary facts concerning the
proceeding;
(b) He served as a lawyer in the
matter in controversy, or a lawyer
with whom he previously
practiced law served during such
association as a lawyer in the
matter, or the judge or such lawyer
has been a material witness
concerning it; . . .
Under Canon 3C(1)(a), a judge is disqualified
to hear any case in which he has an actual
personal bias or prejudice concerning a party
orpersonal knowledgeofdisputed evidentiary
facts concerning the proceeding. This clearly
would include cases where the judge has an
actual bias or personal knowledge of disputed
evidentiary facts arising from prior service as
a party’s guardian or federal fiduciary/payee.
The Commission has advised that a judgewho
previously served as a guardian ad litem in the
matter in controversy is disqualified under
Canon 3C(1)(b). Advisory Opinions 86-270,
86-285 and 87-306. In cases where the judge
has previously acted as a lawyer in the matter
in controversy, disqualification is required by
the express terms of Canon 3C(1)(b). The
Supreme Court of Alabama has given the
phrase “matter in controversy” a rather broad
definition. In Rushing v. City of Georgiana,
361 So.2d 11, 12 (1978), the Court held that
cases involve the same “matter in
controversy” where the same fact, event,
course of events, circumstance, situation or
question is relevant to both cases.
The Commission is of the opinion that the
nature of the fiduciary relationship involved
also requires disqualification of the judge in
cases where the matter in controversy was the
subject of previous litigation while the judge
served as the party’s guardian or federal
fiduciary/payee, even if the judge did not
serve as a lawyer in the previous case. Canon
3C(1) requires disqualification of a judge
wheneverhis impartialitymight reasonablybe
questioned. The test under this canon is:
“Would a person of ordinary prudence in the
judge’s position knowing all of the facts
known to the judge find that there is a
reasonable basis for questioning the judge’s
impartiality?” In re Sheffield, 465 So.2d 350,
356 (Ala. 1984). The question under Canon
3C(1) is not whether the judge is impartial in
fact, but rather whether another person,
knowing all of the circumstances, might
reasonably question the judge’s impartiality.
Ex parte Duncan, 638 So.2d 1332, 1334 (Ala.
1994).
In AdvisoryOpinion 99-740, the Commission
concluded under the general provision in
Canon 3C(1) that a judge is disqualified from
hearing cases in which former clients in
unrelated matters appear for a period of two
years from the time the representation ceased.
The Commission noted that a two-year period
is observed in the federal courts under an
interpretation of the Code of Conduct for
United States Judges, and found that such a
period is appropriate under the Alabama
Canons of Judicial Ethics. The Commission
is of the opinion that the judge in this case is
similarly disqualified to hear cases involving
parties for whom he previously served as
guardian or federal fiduciary/payee, whether
or not he actually acted as the party’s lawyer,
for two years after the fiduciary relationship
ceased.
ADVISORY OPINION 01-770
PAGE 4
Canon 3B(4) provides that a judge “should
exercise his power of appointment only on the
basis of merit, avoiding nepotism and
favoritism.” Canon 2A requires a judge to
“conduct himself at all times in a manner that
promotes public confidence in the integrity
and impartiality of the judiciary.”
The new judge has divested himself of all
financial interest in his former law firm, and it
is the Commission’s understanding that there
are no remaining financial obligations
between the judge and the firm other than the
judge’s already fixed interest in the firm’s
401K plan. The person being considered for
appointment as the general conservator had
previously been selected to serve in this
capacity by the former probate judge, and
there is no reason to believe that he is not fully
qualified to continue to discharge the
responsibilities of the position. Under the
facts presented, the Commission finds no
conflict between reappointment of this
attorney and the provisions of Canons 2A and
3B(4).
The Commission has also considered whether
the proposed appointment would cause
inappropriate disqualification of the judge to
hear cases. In Advisory Opinion 98-707, the
Commission advised a judge that the canons
prohibited her from hiring as her bailiff the
mother-in-lawofalocalattorneywhere,under
the facts presented, such employment would
causemorethanoccasional disqualification of
the judge.
The proposed appointment will cause
disqualification of the judge to hear some
cases. Under Canon 3C(1)(b), the judge may
not hear cases in which the attorney in
question served as a lawyer while the judge
practiced law with the same firm. Any such
cases related to the general conservator
position would only be those which arose
during the approximately two-month period
that the attorneyserved as general conservator
before the judge resigned from the firm.
The judge has also stated an intention to
recuse himself from all cases involving his
former firm for a period of one year. While
this will result in the judge not hearing cases
involving the proposed appointee for this
period, this is not expected to cause any
disruption in the functioning of the probate
court. Uncontested matters may be heard by
the chief clerk, and other cases can be handled
throughthesystem ofspecial judges alreadyin
place to handle the large volume of cases in
the county. While not required by the canons,
it certainly is in keeping with the spirit and
goals of Canons 1 and 2A for a new judge to
refrain from hearing cases involving his
former firm for a period of time after taking
office where this is feasible and consistent
with the proper functioning of the court.
REFERENCES
Alabama Advisory Opinions 86-270, 86-285,
87-306, 98-707, and 99-740.
Alabama Canons of Judicial Ethics, Canons 1,
2A, 3B(4), 3C(1), 3C(1)(a), and 3C(1)(b).
Ex parte Duncan, 638 So.2d 1332 (Ala.
1994).
In re Sheffield, 465 So.2d 350 (Ala. 1984).
Rushing v. City of Georgiana, 361 So.2d 11
(1978).
ADVISORY OPINION 01-770
PAGE 5
This opinion is advisory only and is based on
the specific facts and questions submitted by
the judge who requested the opinion pursuant
to Rule 17 of the Rules of Procedure of the
Judicial Inquiry Commission. For further
information, you may contact the Judicial
Inquiry Commission, 800 South McDonough
Street, Suite 201, Montgomery, Alabama
36104; tel.: (334) 242-4089; fax: (334) 240-
3327; E-mail: [email protected].