Must a judge recuse when a former law clerk joins a lawyer's firm in a related case?

Plain-English summary

A former law clerk had worked extensively on an earlier trial in the case before joining the firm of a lawyer now handling a related modification request. The clerk had not appeared in the pending case, and the judge did not know whether she had worked on it at her new firm.

The Commission found no reasonable basis to question the judge's impartiality and concluded he was not disqualified. It separately said Alabama Rule of Professional Conduct 1.12 might apply to the lawyer and former clerk, and that the judge appropriately could bring the rule to the attorneys' attention under his disciplinary responsibilities.

In practice

Under this opinion, the former clerk's move to a participating firm did not itself require this judge's recusal. The Commission treated the possible Rule 1.12 issue as a separate matter for the lawyers.

Common questions

Q: Did the former clerk's new firm disqualify the judge?

A: No. The Commission found no reasonable basis to question impartiality on the stated facts.

Q: Did the Commission decide whether the lawyers violated Rule 1.12?

A: No. It said the rule may apply and that action by the lawyers may be required, then concluded the judge appropriately could raise the rule with them.

Background and rules framework

The opinion applied Alabama Canon 3C(1)'s reasonable-question test for recusal and cited Canon 3B(3) when discussing a judge's disciplinary responsibilities. It identified Alabama Rule of Professional Conduct 1.12 as a possible lawyer conduct issue.

Citations and references

Ex parte Duncan, 638 So. 2d 1332 (Ala. 1994); Matter of Sheffield, 465 So. 2d 350 (Ala. 1984); Alabama Rule of Professional Conduct 1.12.

See also

• AL Judicial Ethics Op. 03-827: Acquaintance and Recusal

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 03-818

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: MAY 9, 2003 ADVISORY OPINION 03-818
DISQUALIFICATION WHEN FIRM OF
FORMER LAW CLERK APPEARS
ISSUES
Is a judge disqualified to hear a case involving
a post divorce modification request due to a
former law clerk who worked on prior related
proceedings in the case having joined the firm
where the attorney representing one of the
parties is a partner? Answer: No, but it
would be appropriate for the judge to bring
Rule 1.12 of the Rules of Professional
Conduct to the attention of the attorneys in the
case.
FACTS
A change of custody modification request has
recently been filed in a case that is assigned to
a circuit judge. Motions filed in connection
with the petition include one askingfor a court
appointed child custody evaluation. The
petition andmotions werefiledbyAttorneyA,
who is a partner in law firm XYZ.
The judge has held several trials involving the
parties over the past few years. A two- or
three-day trial was held in 1997 when Ms. B
was the judge’s law clerk. Ms. B worked a
great deal on the case at that time. Ms. B
joined law firm XYZ late last year. Ms. B has
not made an appearance in the pending case,
and the judge does not know whether she has
worked on the case since joining the law firm.
The present petition alleges that the father has
a personality disorder, and Attorney A is
asking that the father be interviewed by a
forensic psychiatrist. The judge believes that
such an evaluation would include a complete
history from the parties, including the time
period that Ms. B worked as his law clerk.
The judge also believes that there has been
testimony at previous hearings concerning the
father’s mental health history.
Therehavebeenpreviousrecusalissues raised
in the case as to which the judge has provided
information to and sought advice from the
Commission.
DISCUSSION
Canon 3C(1) states that a judge is disqualified
whenever the judge’s “impartiality might
reasonably be questioned.” This general
provision is followed by subsections listing
some specific circumstances under which a
judge’s impartiality might reasonably
questioned. Since none of the grounds of
disqualification stated in the subsections to
Canon 3C(1) apply, the issue presented is
whether the judge is disqualified under the
general disqualification provision.
“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.”
  ADVISORY OPINION 03-818
  PAGE 2
  Matter of Sheffield, 465 So.2d 350, 355-356
  (Ala. 1984). The question under Canon 3C(1)
  is not whether the judge is impartial in fact,
  but ratherwhetheranotherperson,knowingall
  of the circumstances, might reasonably
  question the judge’s impartiality. Ex parte
  Duncan, 638 So.2d 1332, 1334 (Ala. 1994).
  The Commission finds no reasonable basis to
  question the judge’s impartiality under the
  facts presented. Thus, it is of the opinion that
  the judge is not disqualified to hear the case.
  In considering this matter, Rule 1.12 of the
  Rules of Professional Conduct came to the
  attention of the Commission. It appears that
  this rule may apply to Attorney A and Ms. B
  under the stated facts, and that action on their
  part may be required in order for Attorney A
  to appropriately continue participation in the
  case. In the light of a judge’s disciplinary
  responsibilities under Canon 3B(3), the
  Commission is of the opinion that it would be
  appropriate for the judge to bring Rule 1.12 to
  the attention of the attorneys in the case, in
  order to avoid any potential unprofessional
  conduct.
  REFERENCES
  Alabama Canons of Judicial Ethics, Canons
  3B(3) and 3C(1).
  Ex parte Duncan, 638 So.2d 1332 (Ala.
  1994).
  Matter of Sheffield, 465 So.2d 350 (Ala.
  1984).
  Rule 1.12, Rules of Professional Conduct.
  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].