How long must a judge recuse from cases involving an attorney representing the judge in separate litigation?

Plain-English summary

A judge had retained counsel for a proceeding seeking temporary custody of a grandchild. The judge expected lengthy inactive periods and asked whether recusal from that attorney’s other cases would continue during them and end when representation ceased.

The Commission concluded that disqualification began when the attorney was engaged and continued until the custody matter was finally resolved or the representation otherwise ended. Inactivity did not remove the current attorney-client relationship.

After representation ends, disqualification ordinarily ends too, although extraordinary circumstances may leave a reasonable question about impartiality. The opinion also says the conflict usually applies to the attorney personally, rather than uninvolved partners or associates.

In practice

The opinion ties the usual recusal period to the existence of the judge’s attorney-client relationship and reserves fact-specific analysis after it ends.

Common questions

Q: Does a dormant phase of the judge’s separate case end recusal?

A: No. The attorney still represents the judge while that matter remains unresolved.

Q: When does disqualification ordinarily end?

A: When the matter concludes or the representation otherwise ceases.

Q: Are the attorney’s uninvolved firm colleagues automatically covered?

A: Ordinarily no, absent extraordinary additional circumstances.

Background and rules framework

Canon 3C(1) requires disqualification when impartiality might reasonably be questioned. The Commission applies that standard to current representation of the judge in unrelated litigation.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C(1)

Cases:

• Acromag-Viking v. Blalock, 420 So. 2d 60 (Ala. 1982)

Other opinions cited:

• Alabama Advisory Opinions 88-337, 92-443, 92-446, 92-454, 94-516, 96-590, 96-606, 96-616, 96-623, 99-731, and 02-795

See also

• AL Judicial Ethics Op. 04-838: Former Election Opponent as Party
• AL Judicial Ethics Op. 04-839: Policy Council Director Is Prosecutor’s Spouse

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 04-840

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: MAY 6, 2004 ADVISORY OPINION 04-840
DISQUALIFICATION WHENAN ATTORNEY
IN A CASE REPRESENTS THE JUDGE IN
UNRELATED LITIGATION
ISSUE
I. Does the disqualification ofa judge to hear
matters in which an attorney appears who is
then representing the judge in an unrelated
matter continue while the matter is inactive
but notfinally resolved? Answer: Yes.
II. Does such disqualification cease when the
matter is resolved and representation ceases?
Answer: Yes, absent the existence ofspecial
circumstances causing a continued reason­
able question as to the judge's impartiality.
FACTS
A circuit judge has retained the services of
counsel to represent him and his wife in a
proceeding to obtain temporary custody of
their grandchild. Due to the nature of the
proceeding, thejudge expects there to be long
periods of inactivity followed by review. He
also expects that, at some point in the future,
the matter will be resolved through the re­
turn of custody to the natural parents or by
permanent custody being vested in himself
andhis wife, at which time the representation
would cease.
DISCUSSION
Ajudge is disqUalified from a case in which a
party is represented by an attorney who is
currently representing thejudge in unrelated
litigation. This disqualification is based on
the general provision in Canon 3C(l) that a
judge is disqUalified whenever the judge's
"impartiality might reasonably be ques­
tioned." Recusal is required under Canon
3C(I) when "facts are shown which make it
reasonable for members of the public or a
party, or counsel opposed to question the
impartiality ofthejudge." Acromag-Viking v.
Blalock, 420 So.2d 60, 61 (Ala. 1982). Advisory
Opinions 92-454, 96-616 and 99-731.
Such aisqualification ordinarily only applies
with respect to the appearance ofan attorney
who represents the judge, and not to other
members of that attorney's firm. Absent
extraordinary additional circumstances
causing a reasonable question as to the
judge's impartiality, disqUalification does not
extend to cases involving partners or associ­
ates who are not involved at all in the judge's
case. Advisory Opinions 92-443, 96-616, 96-623,
99-731 and 02-795.
Ajudge'sdisqualificationduetothe appearance
of an attorney representing him in another
matter commences when that attorney is
engaged to represent the judge, and the judge
may take no action in the case after that point
in time. Advisory Opinion 99-731; see also,
AdvisoryOpinion88-337. Ordinarily, disqualifi­
cation ceases when the legal matter involving
the judge concludes, or the representation
otherwise ceases. However, extraordinary
circumstances occasionally exist in which
disqualification extends for a period after
representation ceases. Advisory Opinions 92­
446, 94-516, 96-590, 96-606 and 96-616.
It is the opinion of the Commission that the
judge is disqualified to hear matters in which
an attorney appears who is representing the
judge in a child custody proceeding, until the
proceedingisfmallyresolvedortherepresenta­
tionotherwiseceases. Aftertherepresentation
ceases, thejudge should examine the facts for
any unusual circumstances under which his
impartialitymightremainreasonablyquestion­
able. AdvisoryOpinion96-616. TheCommission
may be consulted if the judge desires advice
abouta particularfactual situationthat arises.
REFERENCES
Acromag-Viking v. Blalock, 420 So.2d 60 (Ala.
1982).
Advisory Opinions88-337,92-443,92-446,92-454,
ADVISORY OPINION 04-840
PAGE 2
94-516,96-590,96-606,96-616,96-623,99-731 and
02-795.
Alabama Canons of Judicial Ethics, Canons
3C(l).
This opinion is advisory only and is based on
the specific facts and questions submitted by
thejudgewho requested the opinionpursuant
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,Alabama36130-3400; tel.: (334) 242·4089;
fax: (334) 353-4043; E-mail: [email protected].