May a judge continue after a close relative enters a case late and the retaining party refuses to remit the resulting disqualification?

Plain-English summary

After a case had been pending for years and the judge had heard contested matters, the plaintiff added an attorney married to the judge’s first cousin shortly before trial. The defendant agreed to remit disqualification, but the plaintiff declined.

The Commission said the relationship ordinarily disqualified the judge if the relative represented a party, absent remittal under Canon 3D. It also said the judge could make a legal determination refusing the attorney’s late appearance, or deeming the party who created the ground for disqualification to have agreed to remittal after contested issues had been heard.

The Commission characterized the attorney’s ability to appear and the party’s deemed remittal as legal questions for the judge, outside its authority to resolve. Under either supported determination, the judge could continue without violating the Canons on the submitted facts.

In practice

The answer is conditional on the judge’s own legal ruling about the late appearance or deemed remittal, with the other party’s remittal already given.

Common questions

Q: Did the family relationship ordinarily disqualify the judge?

A: Yes, if the relative represented a party and disqualification was not remitted.

Q: Did the defendant agree to remittal?

A: Yes. The plaintiff who added the attorney declined.

Q: Could the Commission decide whether the attorney could appear?

A: No. It left that legal question to the judge.

Q: Why did the late timing matter?

A: The judge had already heard contested issues before the plaintiff added the related attorney.

Background and rules framework

Canon 3C(1)(d)(i), as interpreted in prior Commission opinions, applies to an attorney related within the fourth degree to the judge or spouse. Canon 3D governs remittal of that disqualification.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C(1)(d)(i) and Canon 3D

Other opinions cited:

• Alabama Advisory Opinions 88-336, 95-546, 95-548, 95-586, and 97-637

See also

• AL Judicial Ethics Op. 05-848: Inadvertent Letter and Legislator Relative
• AL Judicial Ethics Op. 04-847: Judge’s Volunteer Lawyers Program Letter

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 05-849

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: MARCH 17, 2005 ADVISORY OPINION 05·849
DISQUALIFICATION WHEN A CLOSE
RELATIVE MAKES A LATE APPEARANCE
IN A CASE
ISSUE
Maya judge continue to hear a case when a
close relative makes a late appearance, the
opposing party remits disqualification ofthe
judge, but the party retaining the attorney
relative declines todo so? Answer: Yes, ifthe
judgedetermines that the attorney relative is
precluded from appearing in the case or that
the party who retained him waived the dis­
qualification.
FACTS
A circuit judge had a case set on his trial
docket on January 10, 2005. The case had
been pending for several years and the judge
had ruled on numerous disputed matters,
including a summary judgment motion. The
case was earlier set for trial in January 2004;
it was continued due to an allegation made
just before the trial date that the defendant
had intentionally withheld or responded
untruthfully about documents.
Numerous depositions were subsequently
conducted concerning this allegation, and a
hearing was held that involved about half a
day oftestimony, voluminous briefs, and the
filing of several depositions, multiple affida­
vits and other submissions. Plaintitrs firm
aloneclaims tohave spent almost 160hours of
attorney time and more than $7,500 for out-of­
pocket expenses in discovery and presenta­
tion of the issue to the court. Counsel were
informed that the judge found misconduct by
an employee of the defendant company and
would order sanctions, but that the sanction
would be substantially less than the default
judgment the plaintitrs fIrm requested. This
matter was under advisement on December
22,2004, pending a determination by the court
as to the monetary amount ofthe sanction to
be imposed.
On December 22, an attorney who is married
to a first cousin of the judge entered an ap­
pearance in the case as additional counsel for
the plaintiff. The attorney relative advised
the judge he was retained to assist in jury
selection, for which he would be paid a set fee
by the firm representing the plaintiff. Both
the attorney relative and the fIrm represent­
ing the plaintiff were aware at the time the
attorney was retained that the attorney's
appearance would cause disqualification of
the judge due to his close familial relation­
ship to the judge. Plaintitrs counsel had
announced "ready" at a pretrial conference
earlier in December. Plaintiffneither sought
permission for the attorney relative to ap­
pear, nor made any showing to justify the
belated appearance or to demonstrate the
need for additional counsel.
On the date set for trial, the judge inquired
about the parties' positions regarding his
continued participation in the case. Defen­
dant informed the court that it waived any
potential conflict that the attorney relative's
appearance may have generated. Plaintiff's
counsel then stated the plaintiff was unWill­
ing to remit the disqualifIcation. The judge
continued the case in order to request an
opinion from the Commission.
DISCUSSION
As the inquiring judge recognizes, he ordi­
narily could not hear a case in which this
attorney represented a party, absent remittal
under Canon 3D. Canon 3C(1)(d)(i) provides
that a judge is disqualified when, inter alia, a
person within the fourth degree of relation­
ship to the judge or the judge's spouse is an
officer, director or trustee of a party. This
provision has been interpreted to cause dis­
qualification ofajudge where a party's attor­
ney is related within the fourth degree to the
judge or the judge's spouse, either by consan­
guinity or by affinity. See Advisory Opinion
97-637 and prior opinions cited therein. This
disqualification is subject to remittal under
ADVISORY OPINION 05-849
PAGE 2
Canon 3D. Advisory Opinions 95-546 and 97­
637.
The Commission has previously recognized,
however, that the appearance ofnew counsel
in a case sometimes causes significant dam­
age to judicial economy and/or may be other­
wisedetrimentalto the properadministration
ofjustice. Thus, the Commission has advised
judges that they would not violate the canons
were they to make a legal determination that
an attorney was disqUalified from making a
late appearance in a proceeding. Advisory
Opinion 88-336 and 95-548.
In Advisory Opinion 95-548, the Commission
addressed the matters ofdisqualification and
continuance as follows:
It is the ... opinion ofthe Commission
that there is no hard and fast rule
concerning what to do when disquali­
fication would be required due to the
involvement of ... a nephew of the
judge and that disqualification either
cannot or will not be remitted. in­
stead, this appears to be a matter
committed to the judge's discretion
upon consideration of the factors
generally applicable to questions
involving changes of counsel and
requests for continuances associated
therewith. In other words, it is the
Commission's opinion that the judge
in such a situation should determine
whether a change ofcounsel and con­
comitant continuance is appropriate
under the facts in the case. If it is,
then the judge should recuse himself
and assign the case to another judge;
if it is not, then he may proceed with
the lawsuit and refuse to permit em­
ployment ofnew counsel.
Whether ajudge shouldrefusetheappearance
ofan attorney who would cause his disqualifi­
cation is a legal question the judge must
decide. The Commission may only address
whether a particular course ofconduct might
violate the canons; it is not authorized to
proffer an opinion on other legal questions.
In Advisory Opinion 95-586, the Commission
suggested another option when an appear­
ance ofan attorney after significant proceed­
ings in a case causes disqualification which
the party employing the attorney is not will­
ing to remit. Noting that, as a general princi­
ple, a party cannot create a ground for dis­
qualification by the party's own conduct, the
Commission wrote the following:
It is the opinion of the Commission
that if a party engages the service of
an attorney whose relationship to the
judge handling the case thereby dis­
qualifies thejudge, and ifthe attorney
first files an appearance after the
judge has heard or decided any con­
tested issue in the case, the party
should be deemed to have agreed to
remittal of that disqualification. Of
course, such agreement by the one
party does not infringe on the right of
the opposing party or parties to de­
cline to agree to remittal as provided
in Canon 3D.
The Commission continues to be ofthe opin­
ion that a judge would not be in violation of
the canons were he to make a determination
that a party should be deemed to have agreed
to remittal ofa disqualification the party had
created through the late engagement of an
attorney related to the judge. As previously
noted, the Commission may only address
whether a particular course ofconduct might
constitute a violation ofthe canons.
If the judge permits the attorney relative to
remain in the case, it is the opinion of the
Commission that there is no ethical impedi­
ment to the judge's ruling on the motion for
sanctions now pending before him nor to his
continuing to preside over further proceed­
ings in the case, it being established by the
facts presented that the plaintiffhas brought
the attorneyrelative into the case subsequent
ADVISORY OPINION 05-849
PAGE 3
to the judge having heard contested issues in
the case.
REFERENCES
Advisory Opinion88-336, 95-546, 95-548, 95-586,
and 97·637.
Alabama Canons of Judicial Ethics, Canons
3C(1)(d)(i) and 3D.
This opinion is advisory only and is based on
the specific facts and questions submitted by
thejudge who 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, Alabama 36130·3400; tel.: (334) 242­
4089; fax: (334) 353-4043; E-mail:
[email protected].