May a part-time municipal judge hear a case defended by a lawyer in another judge's law firm?

Plain-English summary

The inquirer described a municipal court staffed by part-time judges. Lawyers in a newly appointed alternate judge's firm represented defendants in the court. The question was whether the presiding judge could hear those cases.

The Commission concluded that the presiding part-time judge was disqualified when defense counsel practiced with another part-time judge of the same municipal court. It relied on the general reasonable-question standard of Canon 3C(1) and the appearance of special influence associated with a fellow judge's firm. It said this disqualification could not be remitted.

In practice

The opinion addressed representation by a lawyer in another judge's firm on the same municipal court. The Commission distinguished this general Canon 3C(1) ground from the canon's specific listed grounds.

Common questions

Q: Does it matter that the lawyer's judge colleague is not handling the case?

A: The Commission still found the presiding judge disqualified when the lawyer practiced with another part-time judge on the same court.

Q: May the parties remit this disqualification?

A: No. The Commission expressly said it could not be remitted.

Background and rules framework

Alabama Canon 3C(1) requires disqualification when a judge's impartiality might reasonably be questioned. The opinion also discussed Canon 2B's prohibition on creating an impression of special influence through a judicial position.

Citations and references

The opinion cites Alabama Canons 2, 2A, 2B, 3C(1), and 5C(1); Matter of Sheffield, 465 So. 2d 350 (Ala. 1984); Ex parte Duncan, 638 So. 2d 1332 (Ala. 1994); and judicial advisory opinions from Arizona, Florida, Hawaii, Louisiana, New York, and Texas.

See also

• AL Judicial Ethics Op. 02-791: Brother-in-Law as Counsel

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 02-790

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: FEBRUARY 8, 2002 ADVISORY OPINION 02-790
DISQUALIFICATION WHEN A PARTY IS
REPRESENTEDBYANATTORNEYWHO
PRACTICES LAW WITH A PART-TIME
JUDGE OF THE SAME COURT
ISSUES
Is a part-time municipal judge disqualified to
hear cases in which the defense counsel is an
attorney who practices law in the firm of
another part-time judge of the same
municipality? Answer: Yes.
FACTS
An attorney recently was appointed as
alternate judge for a municipality which has a
longtime presiding municipal judge, who also
serves as a part-time judge. The city currently
has three court sessions per month. Each of
the judges handles one session per month, and
they alternate handling the first session of the
month. Other attorneys in the new judge’s
firm represent defendants in municipal court
in cases with which the new judge has no
involvement. The new judge receives her
judicial salary directly from the city; these
funds are not part of the firm’s income.
DISCUSSION
None of the specific grounds of
disqualification stated in the subsections of
Canon 3C(1) apply to the question presented.
Thus, the issue is whether the presiding judge
is disqualified under that canon’s general
provision requiring disqualification when the
judge’s “impartiality might reasonably be
questioned.”
“Recusal is required under Canon
3C(l) when ‘facts are shown which
make it reasonable for members of the
public or a party, or counsel opposed
to question the impartiality of the
judge.’ Acromag-Viking v. Blalock,
420, So.2d 60, 61 (Ala. 1982). See,
also, Wallace [v. Wallace, 352 So.2d
1376, 1379, (Ala.Civ.App. 1977)].
Specifically, the Canon 3C(l) test 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?’
Thode, The Code of Judicial Conduct

• The First Five Years in the Courts,
  1977 Utah L.Rev. 395, 402.”
  Matter of Sheffield, 465 So.2d 350, 355-356
  (Ala. 1984). The issue 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).
  Judicial ethics advisory bodies in other states
  are divided on the question whether a judge
  may hear cases in which a party is represented
  by a partner or associate of another judge of
  the same court. The majority of states that
  have addressedthematter have concluded that
  an attorneywho practices law with a part-time
  judge may not practice in the court on which
  the judge serves. After careful consideration,
  theCommissionis persuaded that themajority
  position is correct.
  ADVISORY OPINION 02-790
  PAGE 2
  In addressing this matter, the Texas
  Committee on Judicial Ethics noted that
  Canon 2B prohibits a judge from permitting
  others to convey the impression that they are
  in a special position to influence the judge,
  and it concluded that partners and associates
  of a part-time judge would be in a position to
  convey this impression were they to practice
  in the judge’s court. Texas Advisory Opinion
  190 (1996).
  The Arizona Judicial Ethics Advisory
  Committee reached the same conclusion in
  Arizona Advisory Opinion 92-16. “Although
  the appearance of impropriety is arguably
  attenuated compared to that created when the
  judge herself practices before the court, the
  taint remains. An observer or party might
  suspect that the lawyer’s association with the
  part-time judge fosters special influence.” Id.
  The Hawaii Commission on Judicial Conduct
  has decided that the appearance by a member
  of a judge’s firm before other judges on the
  same court would create an appearance of
  improprietyorunderminepublicconfidencein
  the judiciary, contrary to Canon 2 and 2A.
  Hawaii Advisory Opinion 03-96. In deciding
  that lawyers who are “of counsel” to the law
  firm of a judge may not practice in the court in
  which the judge sits, the Hawaii Commission
  later explained that the appearance of
  impropriety would be caused by an observer
  or party questioning whether the lawyer’s
  association with the part-time judge fosters
  special influenceoradvantage,andthatCanon
  2B is violated by such a perception. Hawaii
  Advisory Opinion 01-98.
  Judicial ethics advisory bodies in other states
  have also concluded that an attorney who
  practices law with a part-time judge should
  not practice in the court on which the judge
  serves. Florida Advisory Opinion 90-26;
  Florida Advisory Opinion 98-23; and
  Louisiana Advisory Opinion 46 (1979). The
  application section of the New York Rules of
  Judicial Conduct specifically addresses this
  matter:
  A part-time judge . . . shall not permit
  his or her partners or associates to
  practice law in the court in which he
  or she is a judge, and shall not permit
  the practice of law in his or her court
  by the law partners or associates of
  another judge of the same court who is
  permitted to practice law, but may
  permit the practice of law in his or her
  court by the partners or associates of a
  judge of a court in another town,
  village or city who is permitted to
  practice law.
  The New York Committee on Judicial Ethics
  has advised that this prohibition extends to an
  attorney who shares office space with a part-
  time judge. New York Advisory Opinions 89-
  160 and 97-46.
  In Texas Advisory Opinion 132 (1989), the
  Committee on Judicial Ethics additionally
  decided that a part-time judge may not
  practice law with a lawyer who represents
  clients whose cases were considered by other
  judges on the same court because this would
  at least give the appearance of disregarding
  Canon 5C(1), which provides that a judge
  should refrain from certain financial and
  business dealings (including ones that tend to
  reflect adverselyon the judge’s impartialityor
  exploit the judicial position).
  In accordance with the foregoing discussion
  andunderthefactspresented,theCommission
  concludes that a part-time municipal judge is
  ADVISORY OPINION 02-790
  PAGE 2
  disqualified to hear cases in which the defense
  counsel is an attorney who practices in the
  firm of another part-time judge of the same
  municipal court. This disqualification may
  not be remitted.
  REFERENCES
  AlabamaCanons of JudicialEthics, Canons 2,
  2A, 2B, 3C(1), and 5C(1).
  Arizona Advisory Opinion 92-16.
  Ex parte Duncan, 638 So.2d 1332 (Ala.
  1994).
  Florida Advisory Opinions 90-26 and 98-23.
  Hawaii Advisory Opinions 03-96 and 01-98.
  Louisiana Advisory Opinion 46 (1979).
  Matter of Sheffield, 465 So.2d 350 (Ala.
  1984).
  New York AdvisoryOpinions 89-160 and 97-
  46.
  New York Rules GoverningJudicialConduct,
  §100.6(B)(3).
  Texas Advisory Opinions 190 and 132.
  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, P. O. Box 303400,
  Montgomery, Alabama 36130-3400; tel.:
  (334) 242-4089; fax: (334) 353-4043; E-mail:
  [email protected].