May a judge appoint lawyers from a firm where the judge’s daughter serves of counsel?

Plain-English summary

A district and juvenile judge had appointed lawyers from a firm before his daughter became of counsel there. She was paid a share of fees she personally generated, rather than a share of firm income. The Commission said he could continue appointing other firm lawyers if no disqualifying facts arose.

The opinion distinguishes appointing a close relative personally from appointing another member of the relative’s firm. It requires the judge to consider personal bias about a party, an interest of his daughter that could be substantially affected by the appointment’s outcome, and other facts reasonably questioning impartiality. It says the judge may disclose the daughter’s firm relationship when making an appointment.

The Commission did not require independent inquiry into the daughter’s firm interests without a reason to suspect an affected interest. A disqualification based on such an interest could be remitted under Canon 3D; the other stated grounds could not.

In practice

The answer depends on the daughter’s actual interest and the judge’s case-specific impartiality. Her of-counsel affiliation alone did not bar appointments of other firm lawyers.

Common questions

Q: Was appointment of the daughter herself at issue?

A: No. The opinion distinguished the separate prohibition on appointing a close relative from appointing other members of her firm.

Q: Could the judge disclose the relationship?

A: Yes. The Commission said Canon 3E allowed disclosure at appointment.

Q: Which ground could be remitted?

A: A substantially affected interest of the daughter could be remitted; personal bias and other impartiality grounds could not.

Background and rules framework

The opinion applies Canons 3B(4) and 3C to appointments involving a relative’s firm, Canon 3E to disclosure, and Canon 3D to remittal of an affected-interest disqualification.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 3B(4), 3C(1), 3C(1)(a), 3C(1)(d), 3D, and 3E

Cases:

• In re Sheffield, 465 So. 2d 350, 356 (Ala. 1984), reasonable impartiality test

Other opinions cited:

• Alabama Advisory Opinion 97-653, disclosure and a relative’s firm interest

See also

• AL Judicial Ethics Op. 06-866: Former Prosecutor’s Parole Letter
• AL Judicial Ethics Op. 06-867: Assistant’s Husband’s Law Partner

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 06-865

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 06-865
APPOINTMENT OF COUNSEL: ATTORNEY IN
SAME FIRM AS CLOSE RELATIVE OF JUDGE
ISSUE
Maya judge appoint as counsel attorneys who
practicc in a firm in which the judge's child is of
counsel? Answer: Yes, unless the judge would have
a personal bias concerning a party as a result or
knows that his relative has an interest that could be
substantially affected by the outcome of the
proceeding, or if the presence of additional factors
would create a reasonable question as to the judge's
impartiality. The judge may, pursuant to Canon 3E,
disclose his relative's relationship at the time the
appointment is made.
FACTS
A district and juvenile court judge's daughter is an
attorne)-who practices ofcounsel with a firm that has
an office in the county where he sits. Her pay is not
dependent upon the income of the firm in that she
receives compensation only as a percentage of the
fees that she personally generates. The firm also
pays expenses forthe office where she practices. The
judge had appointed members ofthe firm to represent
indigent defendants prior to his daughter working
with the firm.
DISCUSSION
The Commission has long held that a judge may not
appoint an attorney who is related to the judge or the
judge's spouse within the fourth degree of
consanguinity or affinity. Advisory Opinions 80-91,
82-138, 87-316 and 99-742. These opinions are
based onthe disqualif)-ing kinship described in Canon
3C(1)(d). In Advisory Opinion 97-661, the
Commissionalso stated that the limitation against the
use of the judge's appointment power based on
nepotism in Canon 3B(4) should be read consistently
with the disqualification provisions in Canon 3C(1).
The Commission has previously concluded that a
judge is not disqualified mercly because a party is
represented by a member ofa law firm in which a
relative within the prohibited degree also is a
member. See, e.g., Advisory Opinions 97-653
and 97-665. The Commission also has held that
the judge is disqualified ifhe or she has a personal
bias or prejudice concerning a party as a result of
the fact that a party is represented by a member of
the law firm in which a close relative also
practices. See, e.g., Advisory Opinion 97-653_
The judge should therefore examine the facts to
determine ifsuch a bias exists.
In addition, pursuant to Canon 3E ofthe Alabama
Canons ofJudicial Ethics,
a judge who does not deem himself or
herself to be disqualified, from a
proceeding by the terms of Canon 3.C.
may nonetheless make information
concerning interests or relationships
available, either b)-filing that information
in the office of the clerk of the judge's
court or by causing notice to be given to
the parties to the proceeding.
The judge, therefore, maydisclosethe existence of
the relationship as described in Canon 3E,
Alabama Canons ofJudicial Ethics.
Canon 3C(1) provides generally that a judge
should disqualif)- himself in any proceeding in
which his "impartiality might reasonably be
questioned." The test under Canon 3C(1) is,
"Would a person of ordinary prudence in the
judge's position knowing all ofthe facts known
to the judge find that there is a reasonable basis
for questioning the judge's impartiality?" In re
She/jield, 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 ofthe circumstances,
might reasonably question the judge's
impartiality. Ex parte Duncan, 638 So.2d 1332,
1334 (Ala. 1994).
ADVISORY OPINION 06-865
PAGE 2
Canon 3C(l)(a) provides for disqualification in the
circumstance of personal bias or prejudice.
concerning a party. Subsection (d) provides, in
pertinent part, that a judge is disqualified to hear
an action where a person within the fourth degree
of relationship to the judge is "known by the judge
to have an interest that could be substantially
affected b)' the outcome ofthe proceeding.,.
In Advisory Opinion 97-653, the Commission ex­
plainedthat disclosure could avoid any appearance
of impropriety and give the parties and their
attorneys the opportunity to supply information
concerning whether any additional circumstances
exist under which the judge's impartiality might
reasonably be questioned. The judge need not
initiate any further investigation into this issue, nor
need he investigate whether or not his relative has
an interest in the law firm that would be
substantially affected by the outcome of the
proceedings unless the judge has reason to believe
that such an interest exists. Advisory Opinions 93­
500 and 97-653.
In the situation presented, the judge's daughter's
pay is not dependent on the income ofthe firm. In
determining whether she has an interest that could
be "substantially affected by the outcome of the
proceeding," the judge should consider whether
there is any other benefit or loss that he knows she
might receive as a result of the appointment,
whether such benefit or loss is such that a
reasonable person might question his impartiality
as a result, and the extent or degree ofthe interest
involved. Advisory Opinions 97-653 and 03-811
(citing L. Abramson, Jud;c;al D;squaliftcat;on
Under Canon 3C a/the Code ofJud;dal Conduct
at 64-65 (American Judicature Society, 1986».
It is the opinion ofthe Commission that the judge
rnay appoint as counsel attorneys who practice in
a firm in which the judge's daughter is ofcounsel
unless the judge would have a personal bias
concerning a party as a result or knows that his
relative has an interest that could be substantially
affected by the outcome ofthe proceeding, or ifthe
presence of additional factors would create a
reasonable question as to the judge's impartiality.
The judge may disclose his daughter's relationship
to the attorney's firm at the time the appointment is
made. Ifhe determines that his daughter does have
an interest that could be substantially affected by
the outcome of the case, such disqualification is
subject to remittal under Canon 3D: other
disqualifying bases that would prohibit the
appointment are not subject to remittal.
REFERENCES
Advisory Opinions 80-91, 82-138, 87-316, 88-338,
93-941,93-500,97-653,97-661,97-653,97-665,
99-742 and 03-811.
Alabama Canons ofJudicial Ethics, Canons 3B(4),
3C(1), 3C(l)(a), 3C(1)(d) and 3D.
I!..x parte Duncan, 638 SO.2d 1332 (Ala. 1994).
In re Shejjield, 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, Montgomery, Alabama 36130-3400:
tel.: (334) 242-4089; fa....:(334) 353-4043: E-mail:
[email protected].