May a judge assign a former Legal Aid lawyer as referee in a case involving another Legal Aid lawyer?

Plain-English summary

A circuit judge appointed referees to help with juvenile cases and considered former Legal Aid lawyers, while current Legal Aid lawyers appeared in many family-court matters. The Commission said the judge could not assign a former Legal Aid lawyer as referee when an appearing Legal Aid lawyer had worked on the matter during the referee’s employment there.

Canon 3B(2) requires a judge to hold court officials under the judge’s direction to judicial standards of fidelity and diligence. The opinion applies to the referee the disqualification rule that would govern a judge formerly associated in legal practice with an appearing lawyer who worked on the same matter.

Although Legal Aid handled public-defense-like work under a state contract, it was a private nonprofit. The Commission declined to extend Canon 3C(1)(b)’s governmental-agency commentary to that organization. It also cited a broad definition of the same “matter in controversy.”

In practice

The restriction depends on the appearing lawyer’s work on the same matter during the referee’s employment. The opinion addresses the appointing judge’s duty, not the referee’s direct coverage by the Canons.

Common questions

Q: Did the Commission directly regulate the referee?

A: No. It said a referee was not directly subject to the Canons, but the appointing judge had a duty under Canon 3B(2).

Q: When was assignment barred?

A: When an appearing Legal Aid lawyer had served as counsel on the matter during the referee’s Legal Aid employment.

Q: Did Legal Aid count as a governmental agency here?

A: No. The Commission treated it as a private nonprofit and declined to apply the governmental-agency exception.

Background and rules framework

Canon 3B(2) requires a judge to supervise court officials under the judge’s control; Canon 3C(1)(b) addresses former lawyer associations in the matter in controversy.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 3B(2) and 3C(1)(b)

Cases:

• Rushing v. City of Georgiana, 361 So. 2d 11, 12 (Ala. 1978), meaning of same matter

Other opinions cited:

• Alabama Advisory Opinion 01-775, the appointing judge’s referee oversight

See also

• AL Judicial Ethics Op. 06-869: Judge on a Nonjudicial Campaign Committee
• AL Judicial Ethics Op. 06-870: Judge on a Community Service Commission

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 06-868

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 06-868
DISQUALIFICATION WHEN REFEREE IS
FORMER LEGAL AID AITORNEY
ISSUES
Maya judge permit a referee who was
previously employed bythe Legal Aid Society
to hear cases in which a party is represented
by a Legal Aid attorney? Answer: Not ifthe
attorney served as a lawyer in the matter in
controversyduringthe referee's employment
by the Legal Aid Society.
FACTS
A circuit judge is responsible for appointing
referees to assist in hearing juvenile cases.
One potential source of candidates is the
Legal Aid Society, whose office handles a
large number ofcases in Family Court. Legal
Aid attorneys are the Court's default source
of court-appointed guardians ad litem and
attorneys for children. In this capacity, they
function as a de facto public defenders office.
The Legal Aid Society is a private, nonprofit
corporation whose work in Family Court is
funded by a contract with the State through
the Administrative Office of Courts. There
are eleven Legal Aid attorneys working in the
Family Court. Together, they represent
parties in the majority ofcases in the Family
Court. Legal Aid attorneys are salaried em­
ployees. They have no financial stake in the
outcome oftheir cases.
DISCUSSION
The Commission may only address whether
action contemplated to be taken by the judge
requesting the opinion might constitute a
violation ofthe canonsofjudicialethics. Rule
17, Rules ofProcedure ofthe Judicial Inquiry
Commission. Thus, the Commission has no
authority to directly address the ethical
propriety of proposed conduct by a referee.
Moreover, a referee is not ajudge and, thus, is
not directly subject to the canons. However,
there is a question under the canons as to
whether a judge who appoints a referee has
an ethical obligation to prevent the referee
from hearing certain cases. Advisory Opin­
ion 01-775.
Canon 3B(2) states that a judge "should re­
quire his staff and court officials subject to
his direction and control to observe the stan­
dards of fidelity and diligence that apply to
him." In considering the provision similar to
Canon 3B(2) that applies to probate judges,
the Commission observed in Advisory Opin­
ion 96-616 that this provision appears to in­
struct ajudge to require his staffand subordi­
nate court officials to disqualify themselves
in proceedings in which they would be dis­
qualified if they were the judge. A referee
appointed by ajudge is a court official who is
subject to the judge's direction and control.
Thus, Canon 3B(2) requires a judge to assure
that a referee assisting him with cases does
not hear cases in which the referee would be
disqualified ifhe or she was the judge. Advi­
sory Opinion 01-775.
Under Canon 3C(1)(b), a judge is disqualified
to hear cases where a lawyer with whom the
judge previously practiced law served during
such association as a lawyer in the matter in
controversy. The inquiring judge notes that
the Commentary to Canon 3C(I)(b) provides:
A lawyer in a governmental
agency does not necessarily have an
association with other lawyers
employed by that agency within the
meaning of this subsection; a judge
formerly employed byagovernmental
agency, however, should disqualify
himself in a proceeding if his
impartiality might reasonably be
questioned because of such
association.
He asks whether the exception stated in the
Commentary to Canon 3C(l)(b) may be
applied when the referee was not a lawyer
ADVISORY OPINION 06-868
PAGE 2
with a governmental agency, but rather with
the Legal Aid Society.
The Commission does not believe it may
apply the exception in the Commentary to
Canon 3C(I)(b) to lawyers with the Legal Aid
Society. That exception is stated to apply to
lawyers in a governmental agency. Thus, it is
the opinion of the Commission that a judge
may not permit a referee who was previously
employed by the Legal Aid Society to hear
cases in which a party is represented by a
Legal Aid attorney ifthe attorney served as a
lawyer in the matter in controversy during
the referee's employment by the Legal Aid
Society. Canons 3B(2) and 3C(I)(b).
The Commission also notes that the Alabama
Supreme Court has given the phrase "matter
in controversy" a rather broad definition. In
Rushing v. City ofGeorgiana, 361 So.2d 11, 12
(1978), the Court held that cases involve the
same "matterin controversy" where the same
fact, event, course of events, circumstance,
situation orquestion is relevant to bothcases.
REFERENCES
AlabamaAdvisoryOpinions 96-616 and 01-775.
Alabama Canons of Judicial Ethics, Canons
3B(2), 3C(I)(b), and Commentary to Canon
3C(I)(b).
Rule 17, Rules of Procedure of the Judicial
Inquiry Commission.
Rushing v. City of Georgiana, 361 So.2d 11
(1978).
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, 800 South McDonough
Street, Suite 201, Montgomery, Alabama
36104; tel.: (334) 242-4089; fax: (334) 240-3327; E­
mail: [email protected].