May an Alabama judge perform legal duties as a military judge advocate while on active duty?
Apply this to your situation
This page answers the general question as of 2003. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A district judge serving in the National Guard and Reserve was called to active duty. His assignments included advising on mobilization, reviewing military targets for legality, overseeing war-crime investigations, and advising on rules of engagement. He asked whether this legal work violated the Canons of Judicial Ethics.
The Commission distinguished active-duty military assignments from an active judge's after-hours legal advice to a state militia. It found no significant risk of eroding public confidence or appearance that judicial office was being exploited. In light of Canon 1, it concluded that the federal active-duty service did not violate Canon 5F's prohibition on a judge practicing law.
In practice
The opinion addresses legal duties assigned during active service in the United States armed forces. Its conclusion rested on that setting and the Commission's stated absence of a realistic appearance of judicial favoritism or exploitation.
Common questions
Q: Did the opinion permit military legal duties while the judge was called to active duty?
A: Yes. The Commission held that service as a judge advocate general on active duty did not violate Canon 5F.
Q: Did the Commission change its earlier answer about after-hours legal advice to a state militia?
A: No. It distinguished Opinion 02-799, which had prohibited that different conduct under Canon 5F.
Background and rules framework
The Commission applied Alabama Canons 1 and 5F. It expressly declined to interpret laws outside the Canons and discussed the federal Supremacy Clause only as a possible separate consideration.
Citations and references
Alabama Advisory Opinions 02-799 and 89-358; Ala. Code §§ 34-3-11, 31-2-36; Ala. Const. amend. 328, § 6.08(b); Illinois Judicial Ethics Committee Opinion 97-8.
See also
Source
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Landing page: Alabama JIC advisory opinions
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Original PDF: Advisory Opinion 03-820
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
JUDICIAL INQUIRY COMMISSION
DATE ISSUED: AUGUST 1, 2003 ADVISORY OPINION 03-820
SERVICEONACTIVEDUTYAS AJUDGE
ADVOCATE GENERAL
ISSUES
Does service on active duty as a judge
advocate general in the United States Army
constitute a violation of the Alabama Canons
of Judicial Ethics? Answer: No.
FACTS
A district judge serves as a judge advocate
generalin the National Guard and Reserve.He
was deployed out of state last year for
homeland defense to perform duties that
included providing legal advice concerning
the mobilization of soldiers, and he later was
sent overseas where his duties included
reviewing targets for legality per the Geneva
Convention, overseeing investigations of
alleged war crimes, giving advice concerning
rules of engagement and other operational law
issues during fly-zone operations, and writing
a legal annex for a consequence management
handbook.
DISCUSSION
In AdvisoryOpinion 02-799, the Commission
addressed an inquiry concerning the propriety
of a judge who was a member of the volunteer
state militia providing legal advice to another
member regarding the business of the militia.
The Commission concluded that this conduct
was prohibited by Canon 5F, which states that
“[a] judge should not practice law.”
As the Commission noted in Advisory
Opinion 02-799, the term “practice law” is not
defined in the canons. One of the authorities
the Commission considered in reaching the
conclusion that the activity then at issue
would constitute “practicing law” was §34-3-
11 of the Alabama Code, which makes it a
misdemeanor for any judge of a court of
record in this state to “give any legal advice.”
The Commission had previously decided that
a judge serving in an advisory capacity with a
state/federal public works project was
prohibited from giving legal advice or in any
way acting as a lawyer in that position.
Advisory Opinion 89-358. The Commission
also observed that Canon 5B does not permit
a judge to serve as a legal advisor to a civic or
charitable organization.
Canon 1 provides as follows:
An independent and honorable
judiciary is indispensable to justice in
our society. A judge should
participate in establishing,
maintaining, and enforcing, and
should himselfobserve,highstandards
of conduct so that the integrity and
independence of the judiciary may be
preserved. The provisions of this
Code should be construed and applied
to further that objective.
(Emphasis added).
There is a significant distinction between a an
active judge providing legal advice to a state
militia unit either after hours or on weekends
and a judge performing legal duties to which
he is assigned when called to active duty in
the service of United States armed forces. It
does not appear to the Commission that there
is any significant risk that acting as a judge
advocate general on active duty with federal
armedservices woulderodepublicconfidence
ADVISORY OPINION 03-820
PAGE 2
in the judiciary. There also does not appear to
be any realistic prospect that the advice or
advocacy efforts the latter would entail would
create a potential appearance of either undue
advantage to the judge/ advocate or of
reciprocal favoritism. Such work is unlikely
to become the subject of any litigation, nor
would an appearance be created that a judicial
position was being exploited.
In light of Canon 1 and the foregoing
observations, it is the opinion of the
Commission that service on active duty as a
judge advocate general in the United States
military does not constitute a violation of
Canon 5F.
While the Commission may not give opinions
interpreting laws other than the canons, we
also note that the Supremacy Clause of the
United States Constitution may possibly
control to override provisions of Alabama law
on the issue in question. Judges are generally
permitted to serve in federal military forces.
Section 6.08(b) of Amendment 328 to the
Alabama Constitution and §31-2-36 of the
Alabama Code exempt service in the military
from the prohibition against a judge holding
another position of public trust. The Illinois
JudicialEthicsCommitteehasconcludedthat,
once called to active duty, no state rules can
restrict the military’s right to assign a reservist
to whatever activity is needed. Illinois
Judicial Ethics Committee, Opinion No. 97-8.
REFERENCES
Advisory Opinions 02-799.
Alabama Canons of Judicial Ethics, Canons
1 and 5F.
Ala. Const., amend. 328, §6.08(b).
Ala. Code 1975, §31-2-36.
Illinois Judicial Ethics Committee, Opinion
No. 97-8.
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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