May a part-time active-retired judge hear a case involving a firm opposing him in another suit and counsel working with him for a common client?

Plain-English summary

A part-time active-retired judge also practiced law. In a case assigned to him, one law firm was a defendant and another represented it. The defendant firm opposed the judge as counsel in a different pending case; the representing firm worked with him as counsel for a common client in another case. The Commission advised disqualification.

The opinion says the specific listed grounds in Canon 3C(1) did not appear to apply. Its general test asks whether a person of ordinary prudence, knowing the judge’s facts, would reasonably question impartiality. A current adversarial relationship with a party and a current co-counsel relationship with its advocate met that standard, even though the judge said he could keep the matters separate.

The Commission also discussed the appearance that co-counsel might enjoy special influence before the judge. It noted that part-time active-retired judges could practice law under the Compliance provisions, while remaining subject to impartiality and disqualification duties.

In practice

The opinion addresses simultaneous relationships in separate pending cases. Its result rests on the observer’s reasonable impartiality question, rather than a finding of actual bias.

Common questions

Q: Did the judge’s confidence in his own impartiality settle the issue?

A: No. The Commission applied an objective reasonable-observer test.

Q: Did permission to practice law remove recusal duties?

A: No. The part-time active-retired judge remained subject to Canon 3C(1).

Q: Which relationships prompted disqualification?

A: The party firm was opposing counsel to the judge in another case, and its representing firm was his co-counsel in another pending matter.

Background and rules framework

Compliance § D(2) exempts part-time active-retired judges from Canon 5F’s practice-of-law bar but not Canon 3C(1). The opinion also invokes Canon 2C’s concern about apparent special influence.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 2, 2C, 3C(1), 5C(1), 5F, and Compliance § D(2)

Cases:

• In re Sheffield, 465 So. 2d 350, 356 (Ala. 1984), reasonable-observer test
• Ex parte Duncan, 638 So. 2d 1332, 1334 (Ala. 1994), appearance of impartiality

Other opinions cited:

• Alabama Advisory Opinion 98-701, an extraordinary relationship with a party
• Alabama Advisory Opinion 96-593, professional association with appearing counsel

See also

• AL Judicial Ethics Op. 07-890: Judge as Television Legal Commentator
• AL Judicial Ethics Op. 08-892: Judges Marketing Healthcare Software

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 07-889

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: October 11, 2007 ADVISORY OPINION 07-889
DISQUALIFICATION - ACTIVE-DUTY
RETIRED JUDGE PRESIDING (1) WHEN
ATTORNEY-LITIGANTSARE OPPOSING
COUNSEL TO THE JUDGE IN A CASE IN
ANOTHER COURT AND (2) WHEN
COUNSEL REPRESENTING THE
ATTORNEY-LITIGANTS ARE CO­
COUNSEL TO THE JUDGE IN A CASE IN
ANOTHER COURT
ISSUE
Maya retired circuit judge, who serves part­
time in an active-duty status, preside in cases
in which Law Firm A is a party-defendant and
Law Firm B is representing Law Firm A (l) if
party-defendant Law Firm A is the judge's
opposingcounsel in an unrelated case pending
in another circuit, and (2) if, in an unrelated
matter pending in the other circuit, Law Firm
B and the judge are "aligned with a common
client," with the judge "working as local
counsel"? ANSWER: No.
FACTS
The retired judge is serving part-time in an
active-duty status and is taking occasional
case assignments in his general geographic
area while also practicing law. He has
accepted several cases in which attorneys are
litigants. In one case, Law Firm A is a party­
defendant and is represented by Law Firm B.
In a case in another circuit, thejudge and Law
Firm A are opposing counsel. In another case
in that same circuit, Law Firm Band thejudge
are "aligned with a common client," with the
judge "working as local counsel." The three
cases are separate from and independent of
each other except for the commonality of the
participation of the part-time active-duty
retired judge.
DISCUSSION
The applicability of the Alabama Canons of
Judicial Ethics to retired judges, who are
serving part-time in an active-duty status, is
specifically provided for by the Alabama
Supreme Court in the Compliance provisions
of the Canons. Section D(2) of the
Compliance provisions provides:
Retired ...judges, who are serving part
time on the Supreme Court or on
either of the courts of appeals or on
any circuit court or district court in the
state, in an active duty status, shall be
required to comply with all of these
Canons, except Canon 5C(3), D, E, F,
G and Canon 6C.
Because a part-time active-duty retired judge
is exempted from Canon 5F, he is permitted to
practice law. However, Canon 5C(l), which
does apply to a part-time active-duty retired
judge, proscribes financial activities that tend
to reflect adverselyon thejudge's impartiality,
interfere with the proper performance of his
judicial duties, orexploit hisjudicial position.
See also Canon 2 ("A judge must avoid
improprietyand the appearance ofimpropriety
in all his activities."). Thus, the Canons
permit a retired judge serving part-time in an
active-duty status to engage in the practice of
law if the judge's particular work does not
reflect adversely on his impartiality, interfere
with the proper performance of his judicial
duties, or exploit his position. Advisory
Opinion 06-862.
A retiredjudge serving part-time in an active­
duty status is also not exempted from
compliance with Canon 3. It does not appear
that any of the specific grounds of
ADVISORY OPINION 07-889
Page 2
disqualification in the subsections of Canon
3C(I) applyto the scenarios presented, i.e., (I)
party-defendant Law Firm A is the judge's
opposing counsel in an unrelated case pending
in another circuit, and (2) Law Firm B, who is
representing Law Finn A before the judge,
and the judge are "aligned with a common
client," with the judge "working as local
counsel" in an unrelated matter pending in the
other circuit.
Thus, the question is whether the judge is
disqualified under Canon 3C(I)'s general
provision requiring disqualification when the
judge's "impartiality might reasonably be
questioned." The test under Canon 3C(I) is,
"Would a person of ordinary 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?" In re Sheffield, 465 So.2d 350,
356 (Ala. 1984). The question under Canon
3C(I) is not whether the judge is impartial in
fact, but rather whether another- a memberof
the public, a party, or counsel- knowing all of
the circumstances, might reasonably question
thejudge's impartiality. Exparte Duncan, 638
So.2d 1332, 1334 (Ala. 1994); In re Sheffield.
In regard to scenario (I), the Commission has
recognized several special circumstances ofa
relationship between a judge and a party that
would cause disqualification. Advisory
Opinion 98-701. One such circumstance is an
"extraordinary" relationship. Id. A person of
ordinary prudence might reasonably question
thejudge's impartiality regarding a party with
whom the judge has a contemporaneous
adversarial relationship as an attorney. Cf
Advisory Opinion 89-352 (a judge presiding
in a case in which a party had been an
adversarial party to one ofthe judge's former
clients while the judge was representing that
client may raise a reasonable question of
impartiality). It appears that there are not any
factors that would alleviate this appearance of
bias or prejudice. Compare id
(disqualification is not required when the
lawyer-client relationship is remote in time,
the parties insist upon the judge hearing the
matter, and the parties so consent in writing).
In regard to scenario (2), "[i]f a part-time
judge is co-counsel to another attorney in a
case, thatrelationship requires disqualification
ifthe co-counsel appears in the judge's court
on an unrelated case." CynthiaGray & Nancy
Biro, An Ethics Guide for Part-Time Lawyer
Judges 39 (1999). Cf Advisory Opinion 96­
593 (a part-time judge may not preside in any
case in which a lawyer with whom he has
formed a professional corporation appears).
When attorneys co-counsel on cases
and divide fees ..., even though they
are not partners or associates in a firm,
there is a professional relationship
which could give an appearance of
impartiality if one of the attorneys
appears before the other in hislher role
as [judge]. Potential conflicts
abound because of the personal,
professional, and financial aspects of
the relationship.
Ohio Advisory Opinion 91-20.
Disqualification is required while the case in
which the judge is co-counsel is still pending,
or until the fees have been received, ifthe case
has been completed. Id. Compare Advisory
Opinion 03-816 (no reasonable basis to
question the active-duty retired judge's
impartiality in a case in which a party was
represented by Attorney A of a certain law
firm, and Attorney B of that same firm is
representing a party in unrelated mediation
ADVISORY OPINION 07-889
Page 3
before the judge who looks to the attorney
representing the mediating party for payment
of the mediation fees if the client does not
pay).
A reasonable observer, party, orcounsel might
question whether counsel's association with
the part-timejudgefosters special influence or
advantage, therebyviolating Canon 2C, which
mandates that a judge "should not lend the
prestige of his office to advance the private
interests of others; nor should he conveyor
permit others to convey the impression that
they are in a special position to influence
him." Cf Advisory Opinion 02-790 (allowing
an associate ofa part-timejudge to practice in
the court in which the judge serves, albeit
before another judge, would permit that
associate to convey the impression that he is
in a special position of influence and, thus,
would be a violation of Canon 2C). But see
Washington Advisory Opinion 06-02 (a part­
time judicial officer is not required to recuse
from hearing all cases in which a party is
represented by an attorney who is co-counsel
with the part-time judicial officer in an
unrelated, pending civil case; however, the
judicial officer should disclose the
relationship to all parties in cases before the
judicial officerduring the pending ofthat case
and, if any party objects, the judicial officer
should withdraw).
In advising that the judge should disqualify
himself pursuant to Canon 3C(1), the
Commission does not suggest that there is an
actual bias in this case and, in fact, the judge
has declared that he can keep all matters
separate and avoid any interference with his
dual responsibilities regarding the various
cases, parties, and counsel involved. Yet, the
determinative consideration is whether
another, knowing all the circumstances, might
reasonably question the judge's impartiality.
Accordingly, the Commission advises that an
active-duty retired judge is disqualified to
preside in a case in which a party is the
judge's opposing counsel in an unrelated
pending case and counsel for that party is the
judge's co-counsel in adifferent pendingcase.
REFERENCES
Advisory Opinions 06-862, 03-816, 02-790,
98-701,96-593, and 89-352.
Alabama Canons ofJudicial Ethics, Canons 2,
2C, 3, 3C(1), 5C(l), 5C(3), 5D, 5E, 5F, 5G,
6C, and Section D(2) of Canons Compliance
provisions.
Exparte Duncan, 638 So.2d 1332, 1334 (Ala.
1994).
In re Sheffield, 465 So.2d 350, 356 (Ala.
1984).
Ohio Advisory Opinion 91-20.
Washington Advisory Opinion 06-02.
Cynthia Gray & Nancy Biro, An Ethics Guide
for Part-Time Lawyer Judges 39 (1999).
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; fax: (334) 353-4043; E-mail:
[email protected].