Should a judge recuse from a case requiring assessment of the conduct and testimony of lawyers who regularly appear before him?

Plain-English summary

A post-arbitration dispute required the trial judge to assess an arbitrator’s alleged bias and testimony by attorneys who regularly practiced before the judge and had pending cases in his court. Allegations about the lawyers’ conduct had also received publicity, and a motion to recuse was pending.

The Commission concluded that the judge should recuse. Earlier opinions held that a regular local lawyer’s status alone did not require recusal, but special circumstances in this matter, considered together, reasonably called impartiality into question.

The opinion distinguished actual personal bias under Canon 3C(1)(a) from the broader appearance standard in Canon 3C(1), and left the legal ruling on the recusal motion to the judge.

In practice

The conclusion turns on the combined facts, including the need to judge regular practitioners’ conduct and testimony and the local practice of recusal when a bar member is a litigant.

Common questions

Q: Did the Commission advise recusal?

A: Yes, on the full facts presented.

Q: Does a lawyer’s regular appearance before a judge alone require recusal?

A: No. The opinion says that fact alone is insufficient.

Q: Did the Commission decide the pending legal motion?

A: No. It stated that the recusal ruling is a legal matter for the judge.

Background and rules framework

Canon 3C(1) governs reasonable questions about impartiality. Canon 3C(1)(a) separately addresses personal bias or prejudice.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C(1) and Canon 3C(1)(a)

Cases:

• In re Sheffield, 465 So. 2d 350 (Ala. 1984)
• Ex parte Duncan, 638 So. 2d 1332 (Ala. 1994)

Other opinions cited:

• Alabama Advisory Opinions 82-136 and 98-701

See also

• AL Judicial Ethics Op. 04-833: Old Divorce Representation and Prior Sentence
• AL Judicial Ethics Op. 04-834: Judicial Title in Church Introduction

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 04-832

Original opinion text

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

JUDICIAL INQUIRY COMMISSION

DATE ISSUED: JANUARY 30, 2004

ADVISORY OPINION 04-832

DISQUALIFICATION WHEN CASE
INVOLVES CONDUCT OF AND TESTIMONY
BY ATTORNEYS WHO REGULARLY
APPEAR BEFORE THE JUDGE

ISSUE

Is a judge disqualified to hear a matter in
which he will have to determine the propriety
of conduct of an attorney who regularly ap-
pears before him, based, in part, on assess-
ment of testimony of attorneys who appear
before him and have cases pending in his
court? Answer: Under the facts presented,
the Commission is of the opinion that the
judge should recuse himself from the case.

FACTS

A local attorney who regularly practices ina
circuit served as an arbitrator in a case.
After the arbitration award was confirmed, a
post-judgment motion to vacate was filed bya
party defendant who argued that the award
was the result of partiality, bias, and corrup-
tion on the part of the arbitrator. The trial
judge denied this motion without a hearing.
On appeal, the Alabama Supreme Court
decided that the trial court erred in denying
the motion without a hearing, finding that the
motion was supported by evidence that, taken
in its entirety, raised a threshold inference of
possible bias based on the arbitrator’s failure
to disclose any interest or bias that might
affect his judgment, including relationships
with the plaintiffs’ attorney. The plaintiffs
had not submitted any evidence to contradict
the assertions of arbitrator bias, but they had
moved to strike evidence submitted in sup-
port of the motion on the ground of hearsay.

Because it is the province of the trial court to
assess the admissibility and weight of the
defendant’s evidence, as well as of any rebut-
tal evidence, the Supreme Court did not
comment on the merits of the defendant’s
allegations. It remanded the case to the trial
court to conduct a hearing to determine

whether adequate, admissible evidence exists
to grant the defendant’s motion to set aside
the judgment of confirmation. For guidance
of the trial court, the Supreme Court dis-
cussed the legal principles that should govern
its consideration of the facts pertaining to the
defendant’s assertion that the arbitrator’s
award was flawed by bias and partiality. It
concluded that the “reasonable impression of
partiality” standard should be applied. Under
this standard, the trial court is to consider
whether the defendant makes a showing,
through admissible evidence that the court
finds to be credible, that gives rise to an
impression of bias that is direct, definite, and
capable of demonstration, as distinct from a
“mere appearance” of bias that is remote,
uncertain, and speculative.

The determination that is to be made in the
case is whether the local attorney who was
the arbitrator in the case was actually biased
or partial, or whether there is a “reasonable
appearance of partiality.” This will require
direct testimony of that attorney and the
plaintiffs’ attorney, both of whom practice in
the circuit and have numerous cases pending
before the court. The defendant has filed a
motion to recuse which is currently under
advisement.

The defendant alleges a “secret deal” involv-
ing the arbitrator, the plaintiffs’ attorney, and
the attorney for another defendant who set-
tled with the plaintiffs. These allegations
have been publicized through the media. The
attorney who represented the second defen-
dant is now a district judge.

It has been the practice in the circuit for
judges to recuse any time a member of the
circuit bar is a party to a pending law suit.

DISCUSSION
Canon 3C(1) provides generally that a judge

should disqualify himself in any proceeding
in which his “impartiality might reasonably

ADVISORY OPINION 04-832
PAGE 2

be questioned.” The test under Canon 3C(1)
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 reason-
able basis for questioning the judge’s impar-
tiality?” In re Sheffield, 465 So.2d 350, 356
(Ala. 1984). The question 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).

The Commission has previously concluded
that the mere fact that a party to a proceeding
is an attorney who regularly practices before
the judge does not cause disqualification of
the judge. Advisory Opinions 82-136 and 98-

701. Both of these opinions recognized, how-
     ever, that the existence of special additional
     circumstances in a particular case might
     cause disqualification. For example, under
     Canon 3C(1)(a), the judge would be disquali-
     fied if he or she had a personal bias or preju-
     dice toward or against the attorney. Advisory
     Opinion 82-136. The judge also could be dis-
     qualified based upon a special social or other
     extraordinary relationship with the attor-
     ney/party, or due to the nature of the particu-
     lar case or its potential impact on future
     working relations among court Officials.
     Advisory Opinion 98-701.

The Commission finds the principles stated in
Advisory Opinions 82-136 and 98-701 applica-
ble to the question at hand. If the inquiring
judge does not feel that he can judge the
matter impartially, he is disqualified under
Canon 3C(1)(a). If he does feel that he can
judge the matter impartially, the issue is
whether special factors exist in this particu-
lar case that create a reasonable question as
to the judge’s impartiality.

A ruling on a recusal motion is a legal matter
for the judge, not the Commission, to make,
and whether a judge is disqualified depends
on the factual circumstances involved. How-

ever, upon careful consideration of both the
enumerated facts and other facts provided to
the Commission but not listed, and given the
practice in the circuit of judges recusing
when a member of the local bar is a litigant,
the Commission is of the opinion that the
totality of the facts does create a reasonable
question as to the judge’s impartiality and,
therefore, that the judge should recuse him-
self from the case even ifhe is not disqualified
due to bias under Canon 3C(1)(a).

REFERENCES
Advisory Opinions 82-136 and 98-701.

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

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

In re Sheffield, 465 So.2d 350 (Ala. 1984).

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, Mont-
gomery, Alabama 36130-3400; tel.: (334) 242-
4089; fax: (8384) 3538-4043; E-mail:
[email protected].