Must a judge recuse when a party is represented by the law partner of the judge’s judicial assistant’s husband?

Plain-English summary

A district judge’s judicial assistant married a private lawyer who practiced in a two-lawyer partnership. The Commission addressed cases in which the husband’s partner represented a party. It said the relationship did not supply an automatic answer.

The judge should disclose the relationship to parties and counsel and examine the facts they supply. If the husband had a known interest that could be substantially affected by the case, the judge was disqualified, but that ground could be remitted. If additional circumstances reasonably questioned impartiality, disqualification could not be remitted.

The opinion drew on the general Canon 3C(1) impartiality test and prior advice treating a judicial assistant as closely connected to the judge for these purposes.

In practice

The opinion distinguishes the lawyer’s firm affiliation from a substantially affected partner interest and from other circumstances raising an impartiality question.

Common questions

Q: Was the husband’s partnership alone disqualifying?

A: The Commission said the judge had to assess the facts; mere affiliation did not by itself resolve the question.

Q: Should the judge disclose the relationship?

A: Yes. The opinion calls for disclosure so parties can supply pertinent information.

Q: Which ground could be remitted?

A: Only disqualification based on the husband’s substantially affected interest; other reasonable-impartiality grounds could not.

Background and rules framework

The opinion applies Canon 3C(1)’s general reasonable-impartiality test and discusses its relative-affiliation commentary and substantially affected interest provision.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 3C(1), 3C(1)(d)(i), and 3C(1)(d)(ii)

Cases:

• Matter of Sheffield, 465 So. 2d 350, 355–56 (Ala. 1984), reasonable-impartiality test

Other opinions cited:

• Alabama Advisory Opinion 02-792, a judicial assistant’s lawyer-spouse
• Alabama Advisory Opinion 93-500, an affiliated lawyer-relative

See also

• AL Judicial Ethics Op. 06-865: Appointments to a Daughter’s Law Firm
• AL Judicial Ethics Op. 06-866: Former Prosecutor’s Parole Letter

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 06-867

Original opinion text

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

•
JUDICIAL INQUIRY COMMISSION
DATE ISSUED: MAY 26, 2006 ADVISORY OPINION 06-867
DISQUALIFICATION WHEN JUDICIAL
ASSISTANT IS MARRIED TO AN
ATTORNEY
ISSUES
Is a judge disqualified from hearing cases in
which the judge's judicial assistant's
husband's law partner represents apartyand,
if so, may the disqualification be remitted?
Answer: The judge is disqualified if he
knows that his judicial assistant's husband
has an interest that could be substantially
affected by the outcome of the case; such a
disqualification is subject to remittal. The
judge also is disqualified if the presence of
additional factors is sufficient to create a
reasonable question as to his impartiality;
such a disqualification is not subject to
remittal.
FACTS
A district judge's judicial assistant recently
married an attorney in private practice who
is in partnership with another attorney.
DISCUSSION
Since none of the specific grounds of
disqualification stated in the subsections of
Canon 3C(I) apply, the issue here is whether
the inquiring judge is disqualified under that
canon's general provision requiring
disqualification when the judge's
"impartiality might reasonably be ques­
tioned."
"Recusal is required under Canon
3C(l) when 'facts are shown which
make it reasonable for members ofthe
public or a party, or counsel opposed
to question the impartiality of the
judge.' Acromag-Viking v. Blalock,
420, So.2d 60, 61 (Ala. 1982). See, also,
Wallace [v. Wallace, 352 SO.2d 1376,
1379, (Ala.Civ.App. 1977)].
Specifically, the Canon 3C(l) test is:
'Would a person ofordinary prudence
in the judge's position knowing all of
the facts known to the judge find that
there is a reasonable basis for
questioning the judge's impartiality?'
Thode, The Code ofJudicial Conduct ­
The FirstFive Years in the Courts, 1977
Utah L.Rev. 395, 402."
Matter ofSheffield, 465 So.2d 350, 355-356 (Ala.
1984). The issue under Canon 3C(I) 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 a judicial assistant stands in the same
position as would the judge himself.
Advisory Opinions 88-333 and 02-792. There is
no simple answer as to whether a judge is
disqualified in cases in which an affiliate ofa
lawyer-relative appears. Advisory Opinion
93-500.
The Commentary to Canon 3C(I)(d)(i)
provides that the mere fact that a lawyer in a
proceeding is affiliated with a law firm with
which a lawyer-relative of the judge is
affiliated does not disqualify the judge but
that, under appropriate circumstances, the
fact that the judge's impartiality might be
reasonably questioned (Canon 3C(I» or that
the lawyer-relative is known by the judge to
have an interest in the law firm that could be
substantially affected by the outcome of the
proceeding (Canon 3C(I)(d)(ii» may cause
disqualification.
The Commission has previously concluded
that, in cases where an attorney representing
a party is affiliated with a law firm with
which a close relative of the judge is also
affiliated, thejudge must consider the facts of
which he is aware to determine whether he or
she is disqualified. Advisory Opinions 88-338,
90-411,93-500,95-565, and 03-811. Further, in
• •
ADVISORY OPINION 06-867
PAGE 2
order to avoid an appearance ofimpropriety,
the judge should disclose the relationship to
the parties and their attorneys. Such
disclosure also provides the parties with an
opportunity to supply additional information
they believe pertinent. Advisory Opinions 93­
500 and 03-811. If the judge finds that
additional factors exist which, in conjunction
with the relationship, would cause thejudge's
impartiality to be reasonably questioned, the
judge is disqualified under Canon 3C(1); such
a disqualification cannot be remitted. If the
judge finds that the lawyer-relative has an
interest that could be substantially affected
by the outcome of the case, the judge is
disqualified under Canon 3C(1)(d)(ii); such a
disqualification may be remitted. Advisory
Opinions 93-500 and 95-565.
Thus, it is the opinion ofthe Commission that
the inquiring judge should disclose the
relationship to the parties and their
attorneys. He should then examine the facts.
The judge is disqualified ifhe knows that his
judicial assistant's husband has an interest
that could be substantially affected by the
outcome ofthe case; such a disqualification is
subject to remittal. The judge also is
disqualified if the presence of additional
factors is sufficient to create a reasonable
question as to his impartiality; such a
disqualification is not subject to remittal.
REFERENCES
Advisory Opinions 88-333, 88-338, 90-411, 93­
500,95-565,02-792, and 03-811.
Alabama Canons of Judicial Ethics, Canons
3C(1), 3C(1)(d)(i), and 3C(1)(d)(ii).
Ex parte Duncan, 638 SO.2d 1332 (Ala. 1994)
Matter ofSheffield, 465 So.2d 350 (Ala. 1984).
This opinion is advisory only and is based on
the specific facts and questions submitted by
thejudge 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; fax: (334) 353-4043; E-mail:
[email protected].