Must a judge recuse when a party is represented by the judge's brother-in-law?
Apply this to your situation
This page answers the general question as of 2002. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
The inquirer was a circuit judge whose brother-in-law practiced law in the same county. The Commission said the familial relationship disqualified the judge when the brother-in-law represented a party.
Canon 3D allowed remittal of this Canon 3C(1)(d) disqualification. The judge had to disclose the relationship in the record. All parties and lawyers then had to agree independently of the judge, in writing, that the relationship was immaterial; their signed agreement had to be incorporated in the record.
In practice
The opinion required either recusal or the specified disclosure and written remittal. It described the agreement of both the parties and their lawyers as necessary.
Common questions
Q: Is recusal automatic when the brother-in-law represents a party?
A: The relationship disqualified the judge unless the parties and lawyers completed the Canon 3D remittal process.
Q: Can an oral waiver suffice?
A: No. The opinion required a written agreement by all parties and lawyers, made independently of the judge and placed in the record.
Background and rules framework
The Commission read Alabama Canon 3C(1)(d)(i) as covering a party's attorney related to the judge or spouse within the fourth degree. Canon 3D supplied the disclosure and written remittal procedure.
Citations and references
The opinion cites Alabama Canons 3C(1)(d)(i) and 3D, and Advisory Opinions 95-546 and 97-637.
See also
Source
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Landing page: Alabama JIC advisory opinions
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Original PDF: Advisory Opinion 02-791
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
JUDICIAL INQUIRY COMMISSION
DATE ISSUED: MARCH 8, 2002
ADVISORY OPINION 02-791
DISQUALIFICATION WHEN A PARTY IS
REPRESENTED BY THE JUDGE’S
BROTHER-IN-LAW
ISSUES
Is a judge disqualified to hear cases in which
a party is represented by the judge’s brother-
in-law? Answer: Yes, but the disqualification
is subject to remittal.
FACTS
The brother-in-law of a circuit judge is an
active member of the bar in the county in
which the judge sits.
DISCUSSION
Canon 3C(1)(d)(i) provides that a judge is
disqualified when, inter alia, a person within
the fourth degree of relationship to the judge
or the judge’s spouse is an officer, director or
trustee of a party. This provision has always
been interpreted to cause disqualification of a
judge where a party’s attorney is related to
either the judge or the judge’s spouse within
the fourth degree, either by consanguinity or
affinity. See Advisory Opinion 97-637 and
prior opinions cited therein.
This disqualification is subject to remittal
under Canon 3D. Advisory Opinions 95-546
and 97-637. Canon 3D provides as follows:
REMITTAL O F
DISQUALIFICATION. A _ judge
disqualified by the terms of Canon
3C(1)(c) or Canon 3C(1)(d) may,
instead of withdrawing from the
proceeding, disclose in the record the
basis of his disqualification. If based
on such disclosure, the parties and
lawyers, independently of the judge’s
participation, all agree in writing that
the judge’s relationship is immaterial
or that his financial interest is
insubstantial, the judge is no longer
disqualified, and may participate in the
proceeding. The agreement signed by
all parties and lawyers shall be
incorporated in the record of the
proceeding.
Thus, the parties and their attorneys may
waive the disqualification resulting from a
judge’s brother-in-law representing a party in
the case, but they must do so in writing after
disclosure in the record by the judge of the
basis for the disqualification. The decision to
remit must be made independent of the
judge’s participation, and the written
agreement remitting the disqualification must
be incorporated in the record of the
proceeding.
It is the opinion of the Commission that the
inquiring judge must either recuse himself
from any proceeding in which his brother-in-
law represents a party or, alternatively, he may
disclose in the record that the attorney is his
brother-in-law, and then recuse himself unless
all the parties and their attorneys waive the
disqualification by agreeing, independent of
his participation and in a writing that is made
part of the record, that the relationship is
immaterial.
REFERENCES
Advisory Opinions 95-546 and 97-637.
Alabama Canons of Judicial Ethics, Canons
3C(1)(d)(i) and 3D.
ADVISORY OPINION 02-791
PAGE 2
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].
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