Is a judge automatically disqualified when counsel appearing before him is his co-defendant in a federal lawsuit?

Plain-English summary

A circuit judge and lawyers who practiced before him were named together in a federal civil RICO suit filed by former or current domestic-court litigants. He said he could remain impartial when a lawyer co-defendant appeared. The Commission concludes that the shared lawsuit does not automatically disqualify him.

Under Canon 3C(1), the judge must examine whether a person of ordinary prudence, knowing all facts known to the judge, would reasonably question impartiality. The opinion distinguishes bias toward an attorney from bias toward a party and rejects an automatic rule based solely on collateral allegations. It says complicated, prolonged litigation or shared personal liability could change the assessment.

The judge should disclose the co-defendant relationship to counsel and parties in any proceeding where that lawyer appears, even if he sees no ground for disqualification. The Commission leaves a recusal motion to the judge as a matter of fact and law. It does not address the separate possibility that a lawyer co-defendant represents the judge in the federal suit.

In practice

The opinion directs a case-specific impartiality inquiry and disclosure when a co-defendant lawyer appears. It treats a pending recusal motion as a judicial decision and leaves the representation of the judge by that lawyer outside its scope.

Common questions

Q: Does the shared federal lawsuit automatically require recusal?

A: No. The Commission calls for examination of the facts rather than an automatic rule.

Q: Can other facts change the result?

A: Yes. The opinion names complicated, prolonged litigation and shared personal liability as possible grounds for a reasonable impartiality question.

Q: Must the relationship be disclosed?

A: The opinion says to disclose the co-defendant relationship to parties and attorneys even when the judge sees no actual basis for disqualification.

Background and rules framework

The opinion applies Canon 3C and its reasonable-impartiality and party-bias provisions. Canon 3E supports disclosure so participants can identify additional relevant circumstances.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 3C, 3C(1), 3C(1)(a), and 3E

Cases:

• McLeod v. State, 581 So. 2d 1144, 1153 (Ala. Crim. App. 1990), collateral suit against a judge
• In re Sheffield, 465 So. 2d 350, 356 (Ala. 1984), reasonable impartiality question

Other opinions cited:

• Alabama Advisory Opinion 07-876, litigant-created recusal grounds
• Alabama Advisory Opinion 88-326, additional circumstances in a shared suit

See also

• AL Judicial Ethics Op. 09-899: Artwork for a Bar Scholarship Auction
• AL Judicial Ethics Op. 09-900: Auctioneer for a Political Club Fundraiser

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 09-901

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: August 2], 2009 ADVISORY OPINION 09-90]
DISQUALIFICATION: JUDGE AND
ATTORNEYS ARE CO-DEFENDANTS IN
FEDERAL LAWSUIT
ISSUE
Is a judge automatically disqualified merely
because a party is represented by an attorney or a
law firm that is currently thejudge's co-defendant
in a federal civil RICO action filed by disgruntled
current/former litigants? ANSWER: No.
FACTS
The inquiring circuitjudge, a retired circuitjudge,
and several attorneys and the attorneys' law firms
are co-defendants in a civil RICO action filed in
federal district court by disgruntled litigants from
the circuit's domestic court. The active judge
serves and the retired judge served solely in that
court. The plaintiffs allege that the co-defendants
committed acts of misconduct and conspired in
illegal activities, all arising from their
participation in cases in the domestic court. Only
one plaintiffhas been a party in a case before the
inquiring judge, as recently as the week of the
release ofthis opinion.
Before filing the pending RICO action, the
plaintiffs had filed another civil RICO action
against all current co-defendants, with the
exception of the inquiring judge. The federal
district court dismissed that action pursuant to a
motion to dismiss.
The inquiring judge can in fact remain impartial
and unbiased in any case in which a RICO co­
defendant represents a party before him.
DISCUSSION
It is for thejudge in the first instance to determine
whether proper grounds for disqualification exist
under Canon 3C. The judge should carefully
consider the facts and circumstances known to
him and detennine whether, under Canon 3C(]),
his impartiality might reasonably be questioned.
In applying the reasonable-person/appearance-of­
impropriety analysis, the question is not whether
thejudge is impartial in fact, but whether a person
of ordinary prudence in the judge's position,
knowing all the facts known to the judge, finds
that there is a reasonable basis for questioning the
judge's impartiality. In re Sheffield, 465 So.2d
350,356 (Ala. ]984).
Expressly included as a disqualifying ground in
Canon 3C(]) is a judge's "personal bias or
prejudice concerning a party." Canon 3C(])(a).
"Bias for or against an attorney, who is not a
party, is not enough to require disqualification
unless it can also be shown that such a
controversy would demonstrate a bias for or
against the party itself." Henderson v. Dept. ~r
Pub. Safety andCorrections, 90] F.2d ]288, ]296
(yh Cir. ]990). The theory in imputing bias
against an attorney to the party has been rejected:
"Read broadly, this peremptory challenge type
approach would bid fair to decimate the bench.
Lawyers, once in controversy with ajudge, would
have a license under which the judge would serve
at their will." Davis v. Board ofSch. Comm 'rs ~r
Mobile County, 5] 7 F.2d 1044, 1050 (51h
Cir.
1975).
Moreov~r, the law will not suppose a possibility
ofbias or favor in a judge who is already sworn to
administer impartial justice and whose authority
greatly depends upon the presumption and idea of
impartiality. Ex parte Mel~f, 553 So.2d 554, 557
(Ala. ]989), abrogated on other ground, Ex parte
CralA.:ford, 686 So.2d 196 (Ala. 1996). Any
disqualifying prejudice or bias as to a party must
be of a personal nature and stem from an
extrajudicial source. !d. Disqualifying favor
does not necessarily comprehend every bias or
partiality the judge may entertain with reference
to the case, but must be ofa character, calculated
to seriously impair his impartiality and sway his
judgment, and be strong enough to
overthrow the presumption of his integrity.
See id.
ADVISORY OPINION 09-901
Page 2
The context within which the disqualification
question is presented here is a lawsuit filed
against the inquiring judge and lawyers who
regularly practice before him. These
circumstances render suspect the ultimate
purpose for filing the lawsuit. The speculation
and conjecture of pleadings of a lawsuit should
not alone lead to disqualifying relationships with
the attorney co-defendants. Cf Leslie W.
Abramson, JudicialDisqualification under Canon
3 of the Code of Judicial Conduct, 36 (2d ed.
1992) (in regard to disallowing a party to
disqualify a judge by filing a lawsuit against the
judge, "impugning the integrity ofa judge should
not lead todisqualification when based on nothing
more than the speculation or conjecture of
pleadings").
Moreover, the instant situation is akin to that of
the filing ofa collateral lawsuit against ajudge by
a litigant in a case before that judge.I Alabama
courts and the Judicial Inquiry Commission have
long thwarted the efforts of litigants to create, by
their own actions, an artificial appearance ofbias
and prejudice, thereby attempting to control the
issue of recusal of a particular judge. Advisory
Opinion 07-876. "It is axiomatic that a litigant
cannot control pending litigation by the mere
filing of [an] action against the trial judge. To
base disqualification on the mere filing ofsuch an
action would create chaos in the judicial system
and could prevent cases from ever being tried."
McLeod v. State, 581 So.2d 1144, 1153 (Ala.
Crim. App. 1990) (quoting Advisory Opinion 86­
273) (the criminal defendant's filing of actions
under 42 U.S.C. § 1983 in federal district court,
against the judge presiding in the defendant's
criminal trial, did not automatically require the
judge to recuse under Canon 3C(1)).
'This exact situation may have occurred
here ifthe one federal plaintiffwho was aparty in
a case before the inquiring judge filed the federal
action before the inquiring judge issued the final
disposition in the case.
In addition, a policy to the contrary would invite
misconduct toward judges and halt the orderly
administration ofjustice.
Here, were the former or current disgruntled
litigants in the circuit's domestic court allowed to
so fundamentally affect the assignment ofcases in
that court and the ultimate exercise of authority
andjurisdiction ofthat court, the possible costs to
the domestic-court system would be catastrophic.
In other words, to find that a judge is
automatically disqualified in any case in which a
party is represented by a lawyer or law firm
named with the judge in a lawsuit would allow
dissatisfied litigants to, in effect, dismantle the
domestic-court system. Such wholesale
disqualification would be accomplished merely by
joining any "adversary" as a party to the lawsuit.
"Thus, each case ofthis nature must be considered
on its own merits and in those instances where ..
. it is easily determined from the face of the
pleadings [of the collateral lawsuit] that the ...
action is completely frivolous, the mere filing of
the action does not disqualify the trial court
judge." McLeod, 581 So.2d at 1153. Other facts
and circumstances, such as the necessity of
complicated, protracted litigation or the co­
defendants' sharing personal liability, could raise
a reasonable question of the judge's impartiality.
See Advisory Opinion 88-326. However, absent
circumstances evidencing an actual bias or
reasonable question as to thejudge's impartiality,
the judge has a duty to preside in those cases
assigned to him. See Advisory Opinion 92-449.
In any proceeding in which one ofthe judge's co­
defendants in the federal action represents a party
before the judge, the judge should disclose that
fact to the attorneys and the parties, even if he
believes that there is no real basis for
disqualification. Canon 3E. This disclosure
could avoid the appearance of impropriety and
give the parties and their attorneys the opportunity
to supply information regarding whether any
additional circumstances exist under which the
ADVISORY OPINION 09-901
Page 3
judge's impartiality might reasonably be
questioned. See Advisory Opinion 07-884.
The decision on a party's motion to recuse is
specifically to be left to the judge for
determination as a matter of fact and law. See
Advisory Opinion 07-876. This opinion addresses
only the ethical matter discussed above. In
addition, this opinion does not consider the
possibility of disqualification if one of the co­
defendant lawyers or law firms represents the
judge in the collateral lawsuit against them.
REFERENCES
Advisory Opinions 07-884; 07-876; 92-449; 88­
326; 86-273.
Alabama Canons of Judicial Ethics, Canons 3C;
3C(l); 3C(1)(a); 3E.
Henderson v. Dept. of Pub. Safety and
Corrections, 901 F.2d 1288 (5th
Cir. 1990).
Davis v. Board of Sch. Comm'rs of Mobile
. .
County, 517 F.2d 1044 (5th
Cir. 1975).
McLeod v. State, 581 So.2d 1144 (Ala. Crim.
App.1990).
Ex parte Melof, 553 So.2d 554, 557 (Ala. 1989),
abrogated on other ground, Ex parte Cra~ford,
686 So.2d 196 (Ala. 1996).
In re She.ffield, 465 So.2d 350, 356 (Ala. 1984).
Leslie W. Abramson, Judicial DisquaNfication
under Canon 3 ofthe Code ofJudicial Conduct,
36 (2d ed. 1992).
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
18 of the Rules of Procedure of the Judicial
InquiryCommission. 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.