Could a part-time active-retired judge appear as of counsel in a law firm advertisement using her former judicial title?

Plain-English summary

A judge planning part-time active retirement asked whether her law firm could list her as “of counsel” in a Yellow Pages advertisement and mention her earlier judicial status. The Commission said the firm could use her name and of-counsel role, because part-time active-retired judges were exempt from Canon 5F’s practice-of-law restriction, subject to other applicable canons.

The Commission rejected using her former judicial title, the judicial offices she had held, or “Honorable” in that public advertising. It reasoned that invoking former judicial status to seek legal business could exploit the prestige of judicial office under Canons 2C and 5C(1). The opinion assumed the judge would serve part-time in an active-duty judicial capacity; it distinguished full-time active-retired judges.

The later Opinion 25-966 expressly overruled 08-896 to the extent inconsistent with its permission for factual biographical statements about previous judicial service. It retained the ban on “Judge,” including “Retired Judge,” in law-firm promotions.

Currency note

The official archive marks Opinion 08-896 “Overruled in Part by 25-966.” Opinion 25-966, issued March 10, 2025, permits factual biographical statements about past judicial service while still barring use of “Judge,” even with “Retired,” in law-firm promotions. It overrules 08-896 to the extent inconsistent.

In practice

The 2008 opinion concerned promotional advertising for a part-time active-retired judge’s law practice. The Commission did not decide the separate treatment of retired judges who provide mediation services.

Common questions

Q: Could the firm identify her by name as of counsel?

A: Yes. The Commission said the designation itself did not exploit her former office.

Q: Could the advertisement call her “Honorable”?

A: No. Opinion 08-896 rejected that honorific in the proposed advertisement.

Q: Does the ban on naming earlier judicial positions still stand?

A: Opinion 25-966 later allowed factual biographical descriptions of prior judicial service and overruled 08-896 to the extent inconsistent.

Background and rules framework

The opinion applies the Alabama Canons’ Compliance § D(2) to a part-time active-retired judge, including the exemption from Canon 5F. It uses Canons 2C and 5C(1) to assess exploitation of judicial prestige in law-firm marketing.

Citations and references

Alabama Canons of Judicial Ethics:

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

Other opinions cited:

• Alabama Advisory Opinion 06-862, law practice and fundraising by an active-retired judge
• Alabama Advisory Opinion 07-890, a part-time judge in a commercial program

See also

• AL Judicial Ethics Op. 08-897: Reporting Matters Under Submission
• AL Judicial Ethics Op. 09-898: Recusal When the Chief Justice Is a Party

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 08-896

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: December 19,2008 ADVISORY OPINION 08-896
RETIRED JUDGE: USE OF HONORIFIC
TITLES BY RETIRED JUDGE SERVING
PART-TIME IN ACTIVE-DUTY STATUS
WHILE PRACTICING LAW
ISSUES

1. May a retired judge serving part-time in
   active-duty status while practicing law be listed
   by name as "ofcounsel" in her law finn's Yellow
   Pages advertisement? Answer: Yes.
2. May the active-retired judge include her
   fonner judicial title in the Yellow Pages
   advertisement? Answer: No.
3. May the active-retired judge list her fonner
   judicial positions, i.e., district, circuit, and/or
   appellate, in the Yellow Pages advertisement?
   Answer: No.
4. May the active-retired judge be denoted as
   "Honorable"? Answer: No.
   FACTS
   A judge, who will soon be taking active­
   retirement status, asks the above-listed questions
   regarding post-retirement use of her pre­
   retirement judicial status in a Yellow Pages
   advertisement ofthe law finn with which she will
   be associating as "ofcounsel."
   DISCUSSION
   The specific provisions of the Alabama Canons
   of Judicial Ethics that apply to an active-retired
   judge are determined by whether the judge is
   serving full-time or part-time in a judicial
   capacity. The canons that apply to a part-time
   active-retired judge are specified in Section D(2)
   of the canons' Compliance provisions, which
   states:
   Retired and supernumerary justices or
   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.
   An active-retired judge who is serving full-time
   must comply with all canonical provisions.
   Advisory Opinion 90-392. In addressing the
   questions submitted by the requesting judge, the
   Commission assumes that, when active-retired,
   the requesting judge will be serving part-time in a
   judicial capacity.
   In regard to Question 1, a part-time active-retired
   judge is specifically exempted, by Section D(2)
   of the Compliance provisions, from the
   application of Canon 5F's prohibition against
   practicing law. A part-time active-retired judge is
   permitted to engage in the practice of law if such
   does not fall within that conduct prohibited by
   Canon 5C(1), i.e., financial and business dealings
   that tend to reflect adversely on the judge's
   impartiality, interfere with the proper
   perfonnance of her judicial duties, or exploit her
   judicial position. Advisory Opinion 06-862.
   Furthennore, the judge may be identified by
   name as "of counsel" to the law finn. The mere
   use of the judge's name would not exploit her
   fonner judicial position. Cf. Advisory Opinion
   96-619 (signing a letter in which the judge offers
   for sale a children's book he authored does not
   exploit his judicial position if he does not use his
   title or office).
   The determination of the remaining questions,
   i.e., whether the requesting judge may include,
   with that "of counsel" designation, any
   distinction as a fonner judge, is governed by
   several canons applicable to an active-retired
   judge. Canon I requires that a judge uphold the
   integrity and independence of the judiciary.
   Canon 2C includes the provision that a judge
   should not lend the prestige of her office to
   advance the private interests of others. This
   ADVISORY OPINION 08-896
   Page 2
   prohibition against a judge's use of the prestige
   of the judicial office includes the requirement
   that a judge not use the prestige of her former
   office. See Texas Advisory Opinion 128.
   Canon 5C(1) provides, in part, that a judge
   should refrain from financial and business
   activities that tend to exploit her judicial
   position.
   Although the Commission has not addressed the
   specific concern of use of honorific titles by a
   part-time active-retired judge, it finds guidance
   in Advisory Opinion 06-862's prohibiting an
   active-retired judge from using her judicial
   position or title in fund-raising activities. The
   Commission reasoned that such use would
   pennit the use of the prestige of her office for
   the purpose ofsoliciting funds.
   The Commission's advisory opinions regarding
   part-time judges are also noteworthy because
   the pertinent canonical provisions discussed
   here also apply to part-time judges. In Advisory
   Opinion 07-890, the Commission advised that a
   part-time municipal judge may not appear
   periodically on a commercial television station's
   morning news show even though such
   appearance would be with the intent to educate
   the public about legal matters and explain
   current legal issues. The Commission relied on
   Canons 2C and 5C(1). The Commission
   likewise applied Canon 2C in advising a part­
   time municipal judge, in Advisory Opinion 84­
   228, that he should not appear as a judge in a
   clothing store advertisement. See also In re
   Judicial Disciplinary Proceedings Against
   Laatsch, 299 Wis.2d 144, 727 N.W.2d 488
   (2007) (a part-time municipal judge was
   reprimanded for highlighting his judgeship in
   his law practice's Yellow Pages advertisement;
   he sought to use the prestige of his judicial
   office to advance his private interests, and he
   exploited his judicial position); New York
   Advisory Opinion 03-34 (a part-time judge may
   not allow his law firm's website to indicate his
   judicial title; the website is a product ofthe firm
   itself and is obviously intended as a
   promotional, commercial product aimed at
   possible consumers of legal services in the
   public at large); Cynthia Gray & Nancy Biro,
   An Ethics Guide for Part-Time Lawyer Judges
   19 (1999) (the letterhead of a law finn with
   which a part-time judge is affiliated may not in
   any way refer to the judge's position; a part­
   time judge's announcement of the opening of a
   private practice may not allude to his identity as
   a judge; a part-time judge's newspaper
   advertisement for his law practice may not
   contain the judge's title), and authorities cited
   therein.
   Other judicial advisory comnusslOns have
   addressed the use of honorific tenns by a retired
   judge who remains governed by the
   canons. Those advisory bodies have concluded
   that a retired judge may not use honorific titles
   because such practice lends the prestige of the
   judicial office to advance private interests and
   also involves the judge in financial and business
   dealings that exploit the judicial position. See,
   e.g., South Carolina Advisory Opinion 6-1987
   (the name of a retired judge, who is subject to
   the canonical provisions that apply to a part­
   time judge, may not appear in a law finn's
   letterhead as "Retired [name of judge] Judge"
   nor may he designate himself on other public
   communications as being a retired judge); Texas
   Advisory Opinion 155 (a retired judge who is
   subject to recall may not use the title "Judge" in
   his law practice, i.e., on letterhead, in
   directories, or in any other public way related to
   the practice of law). See also Kentucky
   Advisory Opinion JE-110 (neither a senior
   judge, governed by the canons, nor his business
   associates in his realtor/auctioneer company
   may refer to him, in relation to his new career,
   as "Judge" in any advertisements or in public).
   In regard to "Honorable," see also Washington
   Advisory Opinion 02-17, advising that fonner
   judicial officers may not use "Honorable" or
   "Hon." in advertising offering mediation and
   arbitration services because that title attaches to
   ADVISORY OPINION 08-896
   Page 3
   the judicial office and not to an individual who
   fonnerly served as a judicial officer.l
   I Although the use of honorific tenus by retired
   judges who provide mediation services is not
   before the Commission here, the Commission
   notes that some jurisdictions have observed a
   different rule for that situation. See, e.g.,
   Maryland Advisory Opinion 2008-14 (a retired
   judge, subject to recall, may state that he is a
   retired judge when soliciting for his alternative­
   dispute-resolution business, given the judiciary's
   encouragement ofADR, the strong public interest
   in publicizing ADR and the providers of those
   services, and the judge's unique position, i.e.,
   authorized to exercise the powers of a judge,
   when recalled, and to engage in the extra-judicial
   exercise ofADR at other times; however, it is not
   appropriate for thejudgeto indicate thenumberof
   years ofjudicial service); Washington Advisory
   Opinion 02-17 (a fonner judge may use the title
   "Judge" in advertising his mediation and
   arbitration services; such information is offeredto
   indicate his experience as a factfinder, and it is
   not misleading or a misrepresentation of his
   qualifications to serve in this capacity when the
   title is accompanied by the words "retired,""ret.,"
   or "fonner," which clearly indicates that he no
   longer serves as a sitting judge). See also
   KentuckyAdvisory Opinion JE-115 (although the
   Supreme Court has promoted mediation as a
   valuable tool for economical disposition of
   controversies, a senior judge, governed by the
   canons, couldnot advertise his mediation services
   by advertising himself as a "Senior Judge" or
   "Retired Judge" or by appearing in his judicial
   robe in advertisements; however, he is permitted
   to state in his advertisements that he has "23 years
   of judicial experience" or is "experienced as a
   trial and appellate judge" because these strictly
   factual statements of judicial experience place
   him on a"level playing field" with others who are
   in the ADR business, and allow a prospective
   customer to select a mediator through the use of
   common criteria).
   After consideration of the authorities noted, the
   Commission concludes that it is improper for a
   part-time active-retired judge to utilize or allow
   her law finn to utilize her pre-retirement judicial
   status in its Yellow Pages advertisement or in
   any other promotional advertisement that is
   directed at the general public for the purpose of
   or the effect of soliciting legal business. As an
   active-retired judge, the requesting judge must
   avoid all impropriety and all appearance of
   impropriety and must expect to be the subject of
   constant public scrutiny. Commentary to Canon
5. Irrespective of the judge's intentions, any
   reference to the judge's fonner judicial
   positions may reasonably lead to the inference
   that she is utilizing her fonner positions to
   attract clients and thereby engaging in a
   financial and business activity that tends to
   exploit her fonner judicial positions. Thus, the
   requesting judge may not include her fonner
   title, judicial positions she has occupied, or
   "Honorable" in the YeHow Pages advertisement.
   As a final note, a judge who is presiding in a
   case in which a retired judge appears as counsel
   should insure that the title "Judge" is not used,
   in the courtroom or in papers involved in the
   litigation, to refer to the retired judge. United
   States Advisory Opinion 72.2
   Such honorific
   designation diminishes the degree of confidence
   in the integrity and impartiality of the judiciary
   and demeans the court as an institution. Id. See
   also New York Advisory Opinion 90-60 (a
   judge's calling a retired judge "Judge" or "Your
   Honor" during a proceeding creates the
   appearance of impropriety or favoritism,
   particularly for lay persons, who may feel
   disadvantaged iftheir lawyer is not also a retired
   judge); ABA Formal Opinion 95-391 (a fonner
   judge should not encourage others to refer to
   2 An exception is allowed where the use of the
   title is necessary to accurately describe a person's
   status at a time pertinent to the lawsuit. United
   States Advisory Opinion 72.
   ADVISORY OPINION 08-896
   Page 4
   him as "Judge X" or "Your Honor" in the
   courtroom or otherwise in connection with legal
   pleadings).
   REFERENCES
   Alabama Canons of Judicial Ethics, Canons 1,
   2C, 5C(1), and SF; Section D(2) of the
   Compliance provisions; and Commentary to
   Canon 2.
   Alabama Advisory Opinions 07-890, 06-862,
   96-619,90-392, and 84-228.
   In re Judicial Disciplinary Proceedings Against
   Laatsch, 299 Wis.2d 144, 727 N.W.2d 488
   (2007).
   Arizona Advisory Opinion 03-06.
   Kentucky Advisory Opinions JE-115 and JE­
   110.
   Maryland Advisory Opinion 2008-14.
   New York Advisory Opinions 03-34 and 90-60.
   South Carolina Advisory Opinion 6-1987.
   Texas Advisory Opinions 155 and 128.
   Washington Advisory Opinion 02-17.
   United States Advisory Opinion 72 (1982).
   ABA Formal Opinion 95-391.
   Cynthia Gray & Nancy Biro, An Ethics Guide
   for Part-Time Lawyer Judges 19 (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.