May a local bar association pay a judge's research assistant after a budget cut?

Plain-English summary

A local bar association offered to pay a circuit judge's research assistant after budget cuts threatened the assistant's job. The proposal allowed either direct payment or payment through the Administrative Office of Courts. The assistant communicated with attorneys and helped keep case files current.

The Commission concluded that the Canons did not permit the arrangement. A party represented by a lawyer who helped pay the judge's employee would appear differently situated from one represented by a noncontributor, out-of-town counsel, or no lawyer. The Commission said the resulting questions about impartiality would cause disqualification and interfere with judicial duties.

In practice

Under this opinion, routing local bar payments through the Administrative Office of Courts did not cure the concern. The Commission rejected both payment routes presented in the inquiry.

Common questions

Q: Could the bar association pay through the Administrative Office of Courts?

A: No. The inquiry expressly included that route, and the Commission rejected payment of the research assistant's salary by the local bar association.

Q: Would universal contributions by local lawyers remove the concern?

A: No. The opinion said cases involving out-of-town counsel or an unrepresented party would still present a problem.

Background and rules framework

The Commission applied Alabama Canons 2 and 2A on appearance of impropriety and public confidence, together with Canon 3C(1)'s reasonable-question standard for disqualification.

Citations and references

Alabama Advisory Opinions 01-778 and 03-821; Ex parte Duncan, 638 So. 2d 1332 (Ala. 1994).

See also

• AL Judicial Ethics Op. 03-826: Bar Foundation Funding Court Staff

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 03-824

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

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

JUDICIAL INQUIRY COMMISSION

DATE ISSUED: OCTOBER 17, 2003

ADVISORY OPINION 03-824

LOCAL BAR FUNDING A’ JUDGE’S
EMPLOYEE’S SALARY

ISSUES

Do the Canons of Judicial Ethics permit payment
ofajudge’s research assistant’s salary by the local
bar association, either directly or through the
Administrative Office of Courts? Answer: No.

FACTS

Budget cuts will result in the layoff of a number
of employees in the state judicial department. A
circuit judge’s research assistant is among those
scheduled to be laid off. The local bar association
has asked him whether it can pay this employee’s
salary, either directly or through the Administra-
tive Office of Courts. The duties of the research
assistant include acting as a liaison between the
judge and attomeys, contacting attorneys as to the
status of cases, and assisting the judge in working
case files in order to keep the files current.

DISCUSSION

Canon 2 requires a judge to avoid the appearance
of impropriety. Canon 2A states that a judge
“should conduct himself at all times in a manner
that promotes public confidence in the integrity
and impartiality of the judiciary.” These princi-
ples are repeated in Canon 3C(1), in the context of
disqualification. Canon 3C(1) provides that a
judge “should disqualify himself in a proceeding
in which. . . his impartiality might reasonably be
questioned.” The issue under Canon 3C(1) is not
whether the judge is impartial in fact, but rather
whether another person, knowing all of the cir-
cumstances, might reasonably question the
judge’s impartiality. Ex parte Duncan, 638 So.2d
1332, 1334 (Ala. 1994).

In Advisory Opinion 01-778, the Commission
concluded that a judge would be disqualified to
hear cases in which a party was represented by an

attorney or a law firm who was the judge’s judi-
cial assistant’s part-time employer. Inthe Commis-
sion’s opinion, such employment would create a
reasonable question as to the judge’s impartiality.

More recently, in Advisory Opinion 03-821, the
Commission decided that it would not be proper
under the canons for a particular position to be
funded in part by the district attorney’s office.
The proposed position was a law librarian/ court-
house security receptionist; the employee would
have served as a joint employee of both the dis-
trict attorney’s and the judges’ offices, guarding
entrance to a closed area of the courthouse that
contains the offices of the judges, their judicial
assistants and court reporters, and the district
attorney. The Commission found that the situa-
tion contemplated would create an improper
perception that the judges and the district attorney
work together, rather than independently from one
another, and that this would erode the perception
of judicial independence that is central under the
canons, contrary to Canon 1, and create a wrong
appearance of impropriety, contrary to Canon 2.
The Commission was also of the opinion that the
resulting appearance of a joint operation would
create a reasonable question as to the judges’
impartiality and, thus, cause disqualification to
hear cases prosecuted by the district attorney’s
office.

In the situation now presented, there would be a
reasonable basis for questioning the judge’s
impartiality in cases in which one party was
represented by an attorney who contributed to the
salary of the judge’s employee and another party
was not. Even if all local attorneys contributed,
there would be a problem when a party either was
represented by out-of-town counsel or appeared
pro se. The arrangement would create an appear-
ance of impropriety, erode confidence in the
integrity and impartiality of the judiciary, and
interfere with the proper performance of the
judge’s duties by causing disqualification to hear
cases,

ADVISORY OPINION 03-824
PAGE 2

It is the opinion of the Commission that the Can-
ons of Judicial Ethics do not permit payment of a
judge’s research assistant’s salary by the local bar
association.

REFERENCES
Advisory Opinions 01-778 and 03-821.

Alabama Canons of Judicial Ethics, Canons 2,2A
and 3C(1).

Ex parte Duncan, 638 So.2d 1332 (Ala. 1994).

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].