Must a judge recuse when counsel comes from a large firm whose nonlitigating partner is the judge’s wife’s nephew?

Plain-English summary

A judge’s wife’s nephew was a nonlitigating partner in a 150-lawyer firm representing a party before the judge. The Commission said that affiliation alone did not disqualify the judge, even though the relative was a partner.

The judge had to assess whether he knew the relative had an interest that could be substantially affected by the case; whether other known facts would reasonably question impartiality; and whether the relationship caused personal bias concerning a party. The opinion says the judge should disclose the relationship so parties can identify relevant additional facts. It did not require an independent investigation absent reason to believe an affected interest existed, though a supported recusal motion could require a hearing about the firm’s financial arrangement.

Disqualification based on the relative’s substantially affected interest could be remitted under Canon 3D. The opinion says recusal for other reasonable impartiality concerns or personal party bias could not be remitted.

In practice

The opinion treated the relative’s partnership as a fact for disclosure and case-specific assessment. It distinguished remittable financial-interest grounds from other impartiality and bias grounds.

Common questions

Q: Does a partner relative at counsel’s firm automatically disqualify the judge?

A: No. The Commission says the affiliation and partnership alone are insufficient.

Q: What must the judge disclose?

A: The opinion says to disclose the relationship to parties and their lawyers so they can present additional relevant facts.

Q: Which recusal ground can be remitted?

A: Only the ground based on the relative’s interest that could be substantially affected by the outcome, under Canon 3D.

Background and rules framework

The opinion applies Canon 3C’s general impartiality standard and the specific provisions for party bias and a relative’s affected interest. It discusses disclosure under Canon 3E and remittal under Canon 3D.

Citations and references

Alabama Canons of Judicial Ethics:

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

Cases:

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

Other opinions cited:

• Alabama Advisory Opinion 03-811, relative’s interest and hearing
• Alabama Advisory Opinion 97-653, disclosure of possibly disqualifying facts

See also

• AL Judicial Ethics Op. 08-893: Domestic Violence Task Force Membership
• AL Judicial Ethics Op. 08-894: Appreciation Letters to Jurors

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 08-895

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: November 21, 2008 ADVISORY OPINION 08-895
D I S Q U A L I F I C A T I O N : P A R T Y
REPRESENTED BY ATTORNEY FROM FIRM
OF RELATIVE WHO IS A FIRM PARTNER
ISSUE
Must a judge disqualify himself from presiding in
a case if one of the parties is represented by
attorneys from a 150-member law firm where one
of its non-litigating partners is the judge’s wife’s
nephew who will not be participating in the case
and whose income probably will not be
substantially affected by the outcome of the
litigation? Answer: The judge is disqualified if
the relative has an interest, known to the judge,
that could be substantially affected by the
outcome; if additional factors exist under which
the judge’s impartiality might reasonably be
questioned; or if the judge has a personal bias or
prejudice regarding a party because of the fact
that a party is represented by a member of his
relative’s law firm. The first ground of
disqualification is subject to remittal; the latter
two are not.
FACTS
The judge’s wife’s nephew is a non-litigating
partner of a 150-member law firm that is
representing a party in a case assigned to the
judge. The judge does not think that the outcome
of the case would substantially affect the nephew.
DISCUSSION
The provisions of Canon 3C address the
determination of whether a judge should
disqualify himself. Canon 3C(1) states the
general standard for disqualification, followed by
a number of subsections listing specific
circumstances in which disqualification is
presumed. The specific test under the general
standard is whether a person of ordinary prudence
in the judge’s position knowing all the facts
known to the judge would find that there is a
reasonable basis for questioning his impartiality.
In re Sheffield, 465 So.2d 350, 356 (Ala. 1984).
Canon 3C(1)(d) specifically provides, in pertinent
part, that a judge is disqualified to hear an action
where:
He or his spouse, or a person within the
fourth degree of relationship to either of
them, or the spouse of such a person:
(i) Is named a party to the
proceeding, or an officer,
director, or trustee of a party;
(ii) Is known by the judge to
have an interest that could be
substantially affected by the
outcome of the proceeding . . . .
“The 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 of itself
disqualify the judge.” Commentary to Canon
3C(1)(d)(i). Although many courts and advisory
committees have adopted a per se rule of
disqualification where the relative within the
prohibited degree is a partner in his firm, Cynthia
Gray, Disqualification Issues When a Judge is
Related to a Lawyer 4 (2001), this Commission
has advised that the mere fact that the relative is a
partner does not require disqualification. See
Advisory Opinions 03-811, 97-653, 97-652, 93-
491, and 88-338. See also Advisory Opinion 90-
411.
The judge’s scrutiny of the circumstances does
not end there, however. The judge must
determine (1) whether any additional factors exist
under which “his impartiality might reasonably
be questioned” under Canon 3C(1), and (2)
whether the 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” under Canon 3C(1)(d)(ii).
ADVISORY OPINION 08-895
Page 2
Commentary to Canon 3C(1)(d)(i). See
1
Advisory Opinion 97-652. In making this
second determination, the judge must consider
any benefit or loss known to him that his relative
might receive, whether that benefit or loss is
that a reasonable person might question the
judge's impartiality as a result, and the extent or
degree of that interest. Advisory Opinions 03-
811, 97-653, and 96-628 (all citing Leslie W.
Abramson, Judicial Disqualification Under
Canon 3C of the Code of Judicial Conduct 64-
65 (1986)).
The judge should, thus, disclose the existence of
the relationship to the parties and their attorneys
and then examine the facts in the particular case.
Advisory Opinions 06-867, 03-811, 01-787, 97-
653, 97-652, and 93-500. “It is the judge’s
obligation to disclose all possibly disqualifying
facts.” Advisory Opinion 97-653 (quoting
Jeffery M. Shaman et al., Judicial Conduct and
Ethics § 5.26 at 146 (1990)). But see Advisory
Opinion 06-865 (under Canon 3E, the judge
“may” disclose). Disclosure avoids any
appearance of impropriety and gives 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.
Advisory Opinions 03-811, 97-653, and 97-652.
The judge is accountable only for those “other
facts” of which he has personal knowledge or of
which he should have known. Advisory
Opinion 93-500. The judge need not initiate any
further investigation into this issue, nor
investigate whether or not his relative has an
interest in the law firm that could be
substantially affected by the outcome of the
proceedings unless the judge has reason to
believe that such an interest exists. Advisory
Opinions 03-811, 97-653, 97-652, and 93-500.
___
Canon 3C(1)(d)(ii) addresses “an interest that
1
could be substantially affected,” not a substantial
interest that could be affected.
Such is not the case, however, if a motion to
recuse is filed alleging that the judge's relative
has an interest that could be substantially
affected in that he has an economic interest in
the fees resulting from the case, and the judge
does not know the financial relationship or
arrangement between his relative and his
relative’s associate. Under those circumstances,
the judge should hold a hearing to determine
whether his relative does in fact have an interest
that could be substantially affected by the
outcome of the case. Advisory Opinion 03-811.2
In addressing whether there exist any other
factors, which, in conjunction with the
relationship, would raise a reasonable question
of the judge’s impartiality, the judge should
consider, if he knows:
whether the lawyer-relative would
receive a commission, contingency, or
bonus from the instant case, or all of the
firm’s cases for a time period; whether
the relative would receive a salary
increase when the firm reached a certain
dollar amount in a given time period;
the degree of kinship between the judge
and the relative; the number of cases the
firm has before the judge; and any other
connections, dealings or relationships of
the judge to other members of the
relative’s firm.
Advisory Opinion 93-500.
___
“[T]his follows from Rule 11 of the Alabama
2
Rules of Civil Procedure, which states that the
signature of an attorney on a motion constitutes
a certificate that there is good ground to support
the motion, and provides penalties for violations.
Like any other motion, it is the obligation of the
attorneys to present whatever evidence they
wish the judge to consider in ruling on the
motion.” Advisory Opinion 03-811.
ADVISORY OPINION 08-895
Page 3
A reasonable basis for questioning the judge’s
impartiality would also exist if the judge knows
that his relative actively assisted trial counsel
with case evaluation and preparation, Advisory
Opinion 01-787, or gave a party legal advice
that related to the matter in controversy,
Advisory Opinions 97-652 and 93-491.
Of course, if the judge has a personal bias or
prejudice regarding a party because of the fact
that a party is represented by a member of his
relative’s law firm, he must disqualify pursuant
to Canon 3C(1)(a). Advisory Opinion 99-726.
If, after considering the facts known to him, the
judge determines that his relative has an interest
that could be substantially affected by the
outcome of the case handled by the relative’s
associate, such disqualification is subject to
remittal. Advisory Opinions 03-811 and 96-628.
Thus, this disqualification is a matter that can be
waived in future cases pursuant to the
p roced u res sp ecified in C an on 3D .
Disqualification due to the existence of other
facts or circumstances under which the judge’s
impartiality might reasonably be questioned and
disqualification for a personal bias or prejudice
are not subject to remittal under Canon 3D.
Advisory Opinions 97-653, 97-652, and 96-628.
When a judge does not deem himself
disqualified from a proceeding under the
provisions of Canon 3C, Canon 3E permits the
judge to disclose information concerning
interests or relationships by either filing that
information in the office of the clerk of the
judge’s court or by causing notice to be given to
the parties in the proceeding. Canon 3E further
provides, “It shall be the duty of the parties to
familiarize themselves with any materials
available for inspection in the clerk’s office.”
REFERENCES
Alabama Canons of Judicial Ethics, Canons 3C,
3C(1), 3C(1)(a), 3C(1)(d), 3C(1)(d)(ii), 3D, and
3E, and Commentary, Canon 3C(1)(d)(i).
Alabama Advisory Opinions 06-867, 06-865,
03-811, 01-787, 99-726, 97-653, 97-652, 96-
628, 93-500, 93-491, 90-411, and 88-338.
In re Sheffield, 465 So.2d 350, 356 (Ala. 1984).
Leslie W. Abramson, Judicial Disqualification
Under Canon 3C of the Code of Judicial
Conduct 64-65 (1986).
Cynthia Gray, Disqualification Issues When a
Judge is Related to a Lawyer 4 (2001).
Jeffery M. Shaman et al., Judicial Conduct and
Ethics § 5.26 at 146 (1990).
________
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.