Must a judge recuse when a party is represented by the lawyer-spouse of the judge’s judicial assistant?

Plain-English summary

A circuit judge’s judicial assistant was married to a lawyer who practiced domestic, criminal, and civil law in the judge’s circuit. The Commission concluded that the judge was disqualified from cases handled by the spouse under Canon 3C(1), and that this disqualification could not be remitted.

The opinion says no listed specific Canon 3C(1) ground directly fit. Instead, it applies the general question whether a person of ordinary prudence would reasonably doubt the judge’s impartiality. Prior advice sometimes allowed an employee to be completely isolated from a relative’s occasional case.

Here the Commission found complete isolation impractical given the significant number of cases likely to involve the lawyer-spouse. Its discussion quoted an earlier opinion about a prosecutor-spouse and the perception of partiality in criminal cases even if ministerial tasks could be reassigned.

In practice

The opinion treats the assistant’s routine involvement and the lawyer-spouse’s significant caseload as decisive facts. It distinguishes occasional cases where complete insulation of an employee might be feasible.

Common questions

Q: Did a specific listed Canon 3C(1) ground control?

A: No. The Commission applied the general reasonable-impartiality standard.

Q: Could the assistant simply be kept out of these cases?

A: The Commission concluded that insulating the assistant from the significant number of the spouse's cases appeared impractical.

Q: Could parties remit the disqualification?

A: No. The opinion expressly says this disqualification cannot be remitted.

Background and rules framework

The opinion applies Canon 3C(1)’s general appearance-of-impartiality standard to the judge’s assistant and the assistant’s lawyer-spouse.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C(1)

Cases:

• Ex parte Duncan, 638 So. 2d 1332, 1334 (Ala. 1994), actual impartiality and appearance
• Matter of Sheffield, 465 So. 2d 350, 356 (Ala. 1984), ordinary-prudence test

Other opinions cited:

• Alabama Advisory Opinion 02-792, assistant’s prosecutor-spouse

See also

• AL Judicial Ethics Op. 07-878: Soliciting Supplies for a Litter Squad
• AL Judicial Ethics Op. 07-879: Former DHR Counsel and Lawyer-Spouse

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 07-877

Original opinion text

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

• •
JUDICIAL INQUIRY COMMISSION
DATE ISSUED: March 9, 2007 ADVISORY OPINION 07-877
DISQUALIFICATION OF JUDGE WHERE A
PARTY IS REPRESENTED BY LAWYER­
SPOUSE OF JUDGE'S JUDICIAL
ASSISTANT
ISSUES
(I) Is a circuit judge disqualified from presiding
in a case where a party is represented by the
lawyer-spouse of the judge's judicial assistant?
Answer: Yes. (2) Ifso, is that disqualification
subject to remittal? Answer: No.
FACTS
The circuitjudge'sjudicial assistant is married to
an attorney who practices domestic, criminal,
and civil law in the judge's circuit. The judge is
one ofthree circuit judges in that circuit.
DISCUSSION
(I) None of the specific grounds of
disqualification in the subsections of Canon
3C(I) apply to the question ofwhether ajudge
is disqualified to hear cases in which a party is
represented by the lawyer-spouse ofthe judge's
judicial assistant. Advisory Opinion 02-792.
Thus, the issue is whether the judge is
disqualified under that canon's general
provision, which requires disqualification when
the judge's "impartiality might reasonably be
questioned," Canon 3C(I). Id. The pertinent
recusal test is whether a person of ordinary
prudence in thejudge's position, knowing all the
facts known to the judge, would find that there
is a reasonable basis for questioning the judge's
impartiality. fire Sheffield, 465 So.2d 350,356
(Ala. 1984). It is of no consequence that the
judge may in fact be impartial. Ex parte Duncan,
638 So.2d 1332, 1334 (Ala. 1994).
In numerous opinions, the Commission has
indicated that the representation ofa party by
a close lawyer-relative of an employee of the
judge conclusively presents a reasonable
question regarding the judge's impartiality.
See, ~, Advisory Opinions 02-792 (judicial
assistant's assistant-district-attorney-spouse);
98-707 (bailiff's lawyer-son-in-law); 94-536
(lawyer-spouse of part-time bailiff); 88-333
(secretary's government-lawyer-spouse); 85­
231 (clerklbailiff's lawyer-brother); 83-190
(clerklbailiffs lawyer-spouse). These same
opinions further hold, however, that this
reasonable basis for questioning the judge's
impartiality can, in some instances, be avoided
ifthejudge insulates his employee from having
any involvement whatsoever with any case in
which the employee's lawyer-relative
represents a party. See also Advisory
Opinions 99-742 (a judge may appoint his
secretary'snephewto an indigent criminalcase
if the secretary does not participate in the
case) and 97-638 (a judge may preside in a
case in which his judicial assistant's spouse is
a litigant ifhis assistant avoids all involvement
with the case).
In Advisory Opinion 02-792, however, the
Commission found that, in some instances
such insulation is impractical. Finding that ~
circuit judge is disqualified from hearing any
criminal case prosecuted by the assistant
district attorney married to his judicial
assistance, the Commission explained,
It appears to the Commission that,
unlike an occasional civil case, it is not
feasible to completely isolate a trial
judge'sjudicial assistant from criminal
cases in which the assistant's spouse is
the prosecuting attorney. It is hard to
imagine a judge handling the
• •
ADVISORY OPINION 07-877
PAGE 2
ministerial tasks associated with a criminal
docket without his judicial assistant. Even if
it is possibleto do so, the Commissionbelieves
that, due to the nature and volume of cases
involved, a perception of partiality would
persist. Moreover, isolating the judicial
assistant would be disruptive to the orderly
administration ofcases since ajudge's judicial
assistant is ordinarily necessarily involved in
criminal cases over which the judge presides.
Cf. Advisory Opinion 98-707 (the Canons
prohibit a judge from hiring as her bailiff a
close relative of a local attorney who handles
numerous cases in the judge's court because
such employment would cause "more than
occasional" disqualification).
Inconclusion, the Commission finds that under
the facts submitted it appears it would be
impractical for a judge to insulate his judicial
assistant from the significant number of cases
in which the judicial assistant's spouse is
counsel and that thejudge is disqualified from
such cases pursuant to Canon 3C(l).
(2) Such disqualification cannot be remitted.
REFERENCES
Alabama Canons of Judicial Ethics, Canon
3C(l)
Ex parte Duncan, 638 So.2d 1332, 1334 (Ala.
1994)
Matter ofSheffield, 465 So.2d 350,356 (Ala.
1984)
Alabama Advisory Opinions 02-792, 99-742,
98-707,97-638,94-536,88-333, 85-231, and
83-190
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].