Must a judge recuse because a lawyer in the case recently ran against the judge?

Plain-English summary

A lawyer who lost a November 2000 judicial election against the inquiring judge later appeared for defendants in a pending case. A recusal motion cited only the lawyer's former candidacy.

The Commission said the election history alone did not create a reasonable question about impartiality. It assumed the judge felt no animosity toward the lawyer and found no additional extraordinary circumstances. It left room for recusal if personal bias or prejudice, or other extraordinary facts, were present.

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: Is a recent opponent's appearance enough by itself?

A: No. The Commission found no basis for recusal from that fact alone.

Q: Could hostility toward the attorney change the result?

A: Only if hostility toward the lawyer was personal and extreme enough to affect the judge's state of mind toward the client, or other extraordinary circumstances reasonably questioned impartiality.

Background and rules framework

The Commission applied Alabama Canon 3C(1)'s general impartiality standard and Canon 3C(1)(a)'s bias provision. It cited earlier opinions holding that a defeated opponent's representation does not automatically disqualify a judge.

Citations and references

The opinion cites Alabama Canons 3C(1) and 3C(1)(a); Reach v. Reach, 378 So. 2d 1115 (Ala. Civ. App. 1979); Advisory Opinions 84-219, 98-716, and 00-761; and Shaman, Lubet & Alfini, Judicial Conduct and Ethics § 4.08.

See also

• AL Judicial Ethics Op. 84-219: Former Election Opponent as Counsel

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 01-786

• 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: AUGUST 24, 2001 ADVISORY OPINION 01-786
DISQUALIFICATION WHEN FORMER
POLITICAL OPPONENT APPEARS AS
COUNSEL IN CASE
ISSUES
Is a judge disqualified to hear a case in
which parties are represented by an attorney
who was a judicial candidate in opposition to
the judge in a recent election? Answer: No,
absent the existence of either personal bias or
prejudice or extraordinary circumstances
creating a reasonable question as to the
judge’s impartiality.
FACTS
A motion to recuse was recently filed in an
action pending before a circuit judge that
asserts as its ground that one of the attorneys
representingthedefendantsranunsuccessfully
against the judge in the election that occurred
in November 2000. The case was filed in late
August 2000. The attorney in question filed
his appearance as additional counsel for the
defendants after the election.
DISCUSSION
Absent either personal bias or prejudice or the
existence of extraordinary circumstances
which cause a reasonable question as to the
judge’simpartiality,ajudgeis not disqualified
when the defeated political opponent of the
judge represents a party in a proceeding.
Advisory Opinion 84-219, 98-716, and 00-

761. See also, Reach v. Reach, 378 So.2d
     1115, 1117 (Ala. Civ. App. 1979).
     A judge is disqualified under Canon 3C(1)(a)
     whenever he or she has a bias or prejudice
     concerning a party for any reason. The
     Commission assumes from the inquiring
     judge’s letter that he feels no animosity
     toward the attorney who was his political
     opponent. However, should this be in
     question, the judge should consider the
     following in determining whether
     disqualification is required under Canon
     3C(1)(a).
     [H]ostility toward a party’s attorney
     must be both personal and extreme
     before it is disqualifying. This is
     particularly so when the judge’s
     behavior toward an attorney does not
     grow out of the particular case the
     judge is hearing at that time.
     Antipathy towards a lawyer will not
     necessarily be considered . . . as
     extending to the lawyer’s client, and
     where the antipathy is against the
     lawyer but not against the client
     personally, recusal will not be
     required.
     J. Shaman, S. Lubet, J. Alfini, Judicial
     Conduct and Ethics §4.08, at 123 (3d ed.
     2000) (footnotes omitted). “[A] judge will be
     disqualified where he or she shows hostility to
     a lawyer that is of such a degree that it
     adversely affects the judge’s state of mind
     toward the lawyer’s client.” Id.
     A judge is disqualified under the general
     provision in Canon 3C(1) whenever his
     “impartialitymightreasonablybequestioned.”
     ADVISORY OPINION 01-786
     PAGE 2
     The mere fact that an attorney in the case is a
     recently defeated political opponent of the
     judge does not create a reasonable question as
     to the judge’s impartiality. However, the
     existence of additional extraordinary
     circumstances might create such a question.
     Since no additional circumstances have been
     presentedtotheCommission, theCommission
     finds no basis fordisqualification of the judge.
     REFERENCES
     Alabama Advisory Opinions 84-219, 98-716,
     and 00-761.
     Alabama Canons of Judicial Ethics, Canons
     3C(1) and 3C(1)(a).
     J. Shaman, S. Lubet, J. Alfini, Judicial
     Conduct and Ethics §4.08 (3d ed. 2000).
     Reach v. Reach, 378 So.2d 1115 (Ala. Civ.
     App. 1979).
     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].