May a municipal judge order defendants into a domestic violence course operated by the judge’s lawyer-tenant?

Plain-English summary

A part-time municipal judge leased office space to a lawyer who operated the county’s only domestic violence intervention course. The judge could choose to order defendants into the course and anticipated receiving rent; he also considered future client referrals and joint law matters with the lawyer. The Commission said he was disqualified in cases where the program was an option.

The opinion reasons that an order sending defendants to the lawyer’s program could affect the tenant’s income and therefore the judge’s financial interests. If such cases ordinarily came before the judge more than occasionally, he could not continue the lease to the lawyer under the financial-interest and recusal Canons.

The Commission added that even without rent, directing defendants into a program operated by someone closely connected to the judge raised appearance and special-influence concerns. It compared earlier opinions on leases, course referrals, and appointments of lawyers with financial ties to a judge.

In practice

The holding applies when the judge has discretion to order attendance at the tenant’s program. It separately limits the lease if these cases would recur more than occasionally.

Common questions

Q: Could the judge decide a case where the course was an option?

A: No. The Commission said his landlord relationship required recusal.

Q: Could the lease continue if those cases were frequent?

A: No. The opinion says the judge could not lease space to the provider if such cases ordinarily appeared more than occasionally.

Q: Would a rent-free arrangement remove every concern?

A: No. The Commission still identified apparent impropriety from directing defendants to a closely connected provider.

Background and rules framework

The opinion applies Canon 3C’s financial-interest and impartiality provisions and Canon 5C’s requirement to manage business interests that cause disqualification. It also discusses Canons 1, 2A, and 2C on appearance and influence.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 1, 2A, 2C, 3C(1), 3C(1)(c), 3C(1)(d)(ii), 5C(1), and 5C(3)

Other opinions cited:

• Alabama Advisory Opinion 88-339, leasing property to a required-course provider
• Alabama Advisory Opinion 94-532, referral to a program with a judge’s financial interest

See also

• AL Judicial Ethics Op. 06-862: Active-Retired Judge’s Work and Fundraising
• AL Judicial Ethics Op. 06-863: Referee Running for the Legislature

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 06-864

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: MARCH 17. 2006 ADVISORY OPINION 06-864
ORDERING A DEFENDANT TO ATTEND A
COURSE PROVIDED BY AN ATTORNEY WITH
WHOM THE JUDGE HAS FINANCIAL AND
OTHER RELATIONSHIPS
ISSUE
Maya part-time municipal judge make discretionary
orders that defendants attend a domestic violence
course provided by an attorney who is a tenant ofthe
judge, to whom he may refer clients, and with whom
he may occasionally jointly handle cases? Answer:
No, the judge is disqualified to handle cases in which
the domestic violence program is an option due to his
landlord relationship with the attorney who operates
the program; if such cases would ordinarily come
before him more than occasionally, he is not
pennitted to lease office space to that attorney.
FACTS
For some months, a part-time municipal judge has
allowed an attorne)' to maintain an office in a
building owned by the judge and his wife where the
judge has his own law practice. The attorney paid no
rent until January. Soon after that payment, the
attorney appeared in the judge's court. Before
realizing this was a problem., the judge ordered the
defendant to pretrial diversion. When he recognized
the conflict shortly thereafter, he entered an order of
recusal in the case.
The same attorney provides a domestic violence
course that is used by the courts in the county where
the judge sits. The course is not othenvise available.
The judge now understands that he should not hear
cases ofan attorney who is also a tenant, and that he
must minimize fInancial activities that would cause
recusal. He inquires whether it would be improper to
order defendants to attend the domestic violence
intervention course operated by the attorney who is
his tenant. Such an order is discretionary. Thejudge
anticipates that the attorney will pay rent for the
office space he occupies. In addition to being a
tenant, the judge foresees possibly, in his capacity.
as a lawyer, referring clients to this attorney and/or
occasionally handling a case jointly with him and,
thus, sharing a legal fee.
DISCUSSION
The Commission has long held that a judge may
not have a landlord/tenant relationship with an
attorney who regularly appears before him. See,
e.g., Advisory Opinions 81-115,82-130 and 82­

164. These opinions follow from Canons 3C(1),
     5C(1) and 5C(3). The judge receives income as a
     financial benefit from the attorney, the financial
     benefIt or income may depend on the fInancial
     success ofthe attorney, and thejudge is required to
     manage his financial interests so as to minimize the
     number ofcases in which he is disqualifIed. Since
     the inquiring judge states that he understands these
     requirements, the Commission assumes that the
     attorney/tenant does not routinely handle cases in
     the municipal court where the judge sits.
     The Commission has rendered several prior
     opinions that it fmds instructive with regard to a
     judge's landlord relationship with an attorney
     offering a domestic violence intervention course
     that the judge has discretion to order defendants to
     attend.
     In Advisory Opinion 88-339, the Commission
     decided that a judge was not permitted to lease a
     building he jointly owned to a Regional Council on
     Alcoholism because the Council conducted a
     driving school program that thejudge was required
     to order convicted DUI defendants to attend. The
     judge had discretion as to the level ofthe school a
     defendant would attend; different levels required
     different fees. The Commission's opinion was
     based on Canons 3C(1)(c), 3C(1)(d)(ii), and 5C.
     ADVISORY OPINION 06-864
     PAGE 2
     The Canon 3C(1) provisions state, in pcrtinent,
     part:
     (1) A judge should disqualif)' himself in a
     proceeding in which his disqualification is
     required by law or his impartiality might
     reasonably be questioned, including but
     not limited to instances where:
     ............
     (c) He knows that he ... or his spouse
     . . . has a financial interest in . . . a
     party to the proceeding, or any other
     interest that could be fmancially
     affected by the outcome of the
     proceeding:
     (d) He ...
     ... .........
     (ii) Is known by the judge to have
     an interest that could be
     substantially affected by the
     outcome ofthe proceeding.
     Canon 5C governs financial activities, requiring a
     judge to, in pertinent part, "refrain from financial
     and business dealings that tend to reflect adversely
     on his impartiality, [or] interfere with the proper
     performance ofhis judicial duties," and to manage
     his financial interests ''to minimize the number of
     cases in which he is disqualified."
     In Advisory Opinion 88-339, part of the judge's
     proposed lessee's income would havc been
     dependent on the outcome of DVI cases on the
     judge's docket. Thus, the judge had an interest in
     his lcssee's income that could be substantially
     affectcd by the outcome ofDVI cases. Underthese
     circumstances, the judge would not be minimizing
     cases in which he was disqualified and, thus, the
     proposed financial arrangement was found
     inconsistent with the canons.
     The Commission similarly decided in Advisory
     Opinion 94-532 that it would constitute a violation
     ofthe canons for a judge to refer a defendant to a
     private, for-profit drivers' education program ifthc
     judge had any fmancial interest in thc treatment
     centcr or ifthe judge received any personal benefit,
     financial or otherwise, from the center as a result
     ofthe judge's referral.
     In Advisory Opinion 99-742, the Commission held
     that a judge was not permittcd to appoint an
     attorney who was renting office space from the
     judge's wife as counsel for indigent defendants
     whose cases would bc on his colleague's dockets.
     Since the fmancial well being ofthe attorney could
     affect the judge's own fmancial interests, the
     Commission found the judge's impartiality in
     exercising his discretion to appoint this attorneY
     might reasonably be questioned. ­
     Under the facts now presented, it is the opinion of
     the Commission that the judge is disqualified to
     handle cases in which the domestic violence
     program is an option due to his landlord
     relationship with the attorney who operates the
     program and, ifsuch cases would ordinarily come
     before him more than occasionally he is not
     -,
     permitted to lease officc space to that attorney.
     Even without the prospect offmancial benefit, i. e.,
     even were the judge not to receive rcnt from the
     attorney in question, there would a real issue as to
     the propriety of the judge ordering defendants to
     the attorney's domestic violence program. In
     Advisory Opinion 94-538, the Commission
     concluded a judge was not permitted to sentence
     defendants to attend a DVI program taught by his
     bailiff. The Commission was of the opinion that
     such an arrangement was "fraught with the
     appearance of impropriety and does not promote
     public confidence in the integrity and impartiality
     of the judiciary" (Canons 1 and 2A), and could
     "conveyor permit others to convey the impression
     that they are in a special position to influence \the
     judge]'" (Canon 2C).
     ADVISORY OPINION 06-864
     PAGE 3
     REFERENCES
     Advisory Opinions 81-115, 82-130, 82-164, 88­
     339, 94-532, 94-538, and 99-742.
     Alabama Canons ofJudicial Ethics, Canons I, 2A,
     2e. 3C(1), 3C(1)(c), 3C(1)(d)(ii), 5C, 5C(1) and
     5C(3).
     This opinion is advisory only and is based on the
     specific fucts 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.
     Box303400, Montgomery, Alabama36130-3400;
     tel.: (334) 242-4089; fa....: (334) 353-4043; E-mail:
     jicta;alalinc.net.