Must a judge recuse when counsel in a new case took part in an earlier disciplinary case against the judge?
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This page answers the general question as of 2009. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A judge disciplined by the Court of the Judiciary asked about later cases involving the complainant, witnesses, prosecutor, defense attorney, or their colleagues. He also sent the Commission pending recusal motions. The Commission says it cannot decide those motions or issue an independent ruling on their merits; its role is general ethics advice under Rule 18.
For the later cases, Canon 3C(1) asks whether a person of ordinary prudence, knowing the full circumstances, would reasonably question the judge's impartiality. The Commission says the prior disciplinary findings, publicity, attorney's role, the judge's conduct toward that person, and passage of time can matter. Mere past representation by the judge's former defense counsel, after the representation ends, need not alone require recusal; additional circumstances may change that answer.
The opinion discusses possible extension to a lawyer's firm colleagues when extraordinary circumstances support a question about impartiality. It says Canon 3E disclosure may help parties provide relevant facts, while the judge retains the recusal determination.
In practice
The opinion places the recusal inquiry with the judge and leaves a pending motion to the trial court process. It supplies case-specific factors rather than a fixed period or blanket rule.
Common questions
Q: Can the Commission decide a pending recusal motion?
A: No. It says Rule 18 authorizes ethics advice, while the specific motion is for the court.
Q: Does a disciplinary complainant’s appearance always require recusal?
A: The opinion directs the judge to examine the full facts, including the person’s role and the disciplinary history.
Q: Can the concern extend to lawyers in the same firm?
A: Yes, if extraordinary circumstances make impartiality reasonably questionable.
Q: Does passage of time settle the question?
A: No fixed period is given. The opinion says the answer remains dependent on circumstances.
Background and rules framework
The Commission explains its Rule 18 advisory jurisdiction and applies Canons 2A and 3C(1) to impartiality. It also discusses Canon 3E disclosure.
Citations and references
Alabama Canons of Judicial Ethics:
- Canons 1, 2A, 2C, 3C(1), and 3E
Cases:
- Ex parte City of Dothan Personnel Board, 831 So. 2d 1, 11 (Ala. 2002), totality of circumstances
- In re Sheffield, 465 So. 2d 350, 357 (Ala. 1984), appearance of impropriety and reasonable doubt about recusal
Other opinions cited:
- Alabama Advisory Opinions 84-220 and 96-616, disciplinary witnesses and firm colleagues
See also
- AL Judicial Ethics Op. 09-903: Judge’s Bank Accounts, Loan, and Bank Relative
- AL Judicial Ethics Op. 11-904: Party Complaint and Ongoing Judicial Investigation
Source
- Landing page: Alabama JIC advisory opinions
- Original PDF: Advisory Opinion 09-902
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
JUDICIAL INQUIRY COMMISSION
ADVISORY OPINION 09-902
I. COMMISSION'S JURISDICTION:
MOTIONS TO RECUSE
II. DISQUALIFICATION: PARTY
REPRESENTED BY ATTORNEY WHO
WAS INVOLVED IN PROSECUTION OF
JUDGE IN COURT OF JUDICIARY
ISSUES
I. May the Commission render an opinion on
the merits ofa pending motion to recuse?
II. Is a judge, who had been found guilty and
sanctioned by the Court of the Judiciary,
subsequentlydisqualified in any case in which
(1) a party is represented by an attorney who
was the complainant or a material witness in
the Commission's prosecution ofthejudge in
the Court of Judiciary; (2) an attorney,
investigator, or employee of the former
complainant/witness's finn is involved in the
subsequent case before the judge; (3) the
Commission's prosecutor represents a party;
or (4) the judge's fonner defense attorney
represents a party?
FACTS
Thejudge was prosecuted by the Commission
in the Court ofthe Judiciary. That court found
that he had violated numerous canons and
meted out sanction accordingly. The judge
now seeks guidance regarding the question of
his recusal in cases in which litigants are
represented by attorneys who were prominent
in the disciplinary proceedings against him.
He has also forwarded to the Commission
pending motions to recuse and the transcript
ofa hearing on one ofthose motions.
DISCUSSION
The Commission's authorityto issue advisory
opinions is Rule 18, Rules ofProcedure ofthe
Judicial Inquiry Commission, which provides
the following:
A judge may direct to the
commission in writing a request for an
opinion as to whethercertain specified
action contemplated or proposed to be
taken by the judge may constitute a
violation of the Canons of Judicial
Ethics, and the commission may, in its
discretion, render to the judge in
writing such opinion as it may deem
appropriate in the premises. Any
such opinion rendered by the
commission that certain specified
conduct by the judge would not
constitute a violation ofthe Canons of
Judicial Ethics shall be admissible on
behalf of the judge to whom it is
directed in anydisciplinaryproceeding
involving the propriety of such
conduct by the judge to whom the
opinion is directed.
This rule does not give the Commission the
authority to give its independent opinion as to
the appropriate ruling on a motion to recuse
filed in a specific case. See Advisory Opinion
07-883. Once a motion to recuse is filed, the
question expands beyond ethical
considerations to factual and legal ones, and
the motion is then in an adversarial context.
The Commission had no authority to
determine the correctness of the respective
legal and factual positions. See Advisory
Opinion 89-384. Such is beyond the
ADVISORY OPINION 09~902
Page 2
Commission's jurisdiction, for it is not an
adjudicatory body. See Advisory Opinion 93
- Moreover, the Commission has no
authority to require any judge to take or
refrain from taking any action. As Rule 18
specifies, the Commission may address only
"a certain specified action contemplated or
proposed to be taken by the judge" and, even
then, only in the context of the application of
the Canons ofJudicial Ethics.
The decision whether to recuse rests with the
judge and cannot be decided for that judge by
an advisory body. The burden is solely on the
judge, Advisory Opinion 84-221, and the
Commission cannot invade that province of
the trial court. As Rule 18 provides, an
advisory opinion is rendered solely for the
benefit of the judge and is admissible on
behalfofajudgeonly should he act consistent
with the opinion and then have disciplinary
proceedings brought against him for that
conduct. Balogun v. Balogun. 516 So.2d 606,
609 (Ala. 1987), abrogated on other ground
by Ex Parte Crawford, 686 So.2d 196 (Ala.
1996). Such an advisory opinion is not
binding and does not affect a party's rights or
remedies. Balogun, 516 So.2d at 609;
Advisory Opinion 94-530. Cf Advisory
Opinion 87-298 (where a petition for
mandamus on the trial judge's denial of a
motion to recuse is pending before the
appellate court, it would be presumptuous for
the Commission to issue a non-binding
advisory opinion).
The Alabama Supreme Court presented the
following discussion of "recusal" and
"disqualification" in Ex parte Cotton, 638
So.2d 870, 871-72 (Ala. 1994), abrogated on
other ground by Ex Parte Crawford, 686
So.2d 196 (Ala. 1996):
At the outset, we point out the
distinction between recusal and
disqualification. Although the
fundamental difference is a procedural
one, a brief clarification seems
appropriate here. When the facts of a
case present possible bias on the part of
a trial judge, or the appearance ofbias,
the party who sees that possible bias or
appearance of bias has the duty of
moving for a recusal. It becomes the
judge's responsibility to initiate the
action of removing himself from the
case under Canon 3(C)(I)onlywhen he
is disqualified. Generally, the grounds
for recusal are as well known to the
parties as they are to the judge, but
facts leading to disqualification are
often known only to the judge.
When disqualification is
required, the duty is squarely placed
upon the judge to disqualify himself.
Consequently, the judge's failure to
disqualify himself in a particular case,
when required to do so by the Canons,
may subject thejudge to an inquiry ifa
complaint is filed with the Judicial
Inquiry Commission, whereas, the
judge's ruling on a recusal motion is
reviewable on a mandamus petition
filed in the appropriate appellate court.
However, although recusal and
disqualification are two separate
concepts, there has developed an
overlap. The preamble to the Canons
states that the Canons "formulate and
establish ... principles which govern
the conduct of members of the
judiciary." These Canons establish a
system to govern the judiciary that is
ADVISORY OPINION 09-902
Page 3
administered bya peer-review system:
the Judicial Inquiry Commission.
However, the Canons are also being
used to define legal standards of
judicial conduct. See Wallace v.
Wallace, 352 So.2d 1376
(Ala.Civ.App. 1977) (where the court
held that the Canons had the force of
law and used the objective standard of
Canon 3(C)(l) to hold that a trial
judge erred in failing to grant the
motion to recuse). See also Ex parte
MeloJ, 553 So.2d 554, 556 (Ala.
1989).
Thus, after a motion to recuse has been filed,
the Commission restricts its advisory opinion
to the inquiring judge to general advice
regarding the application ofthe Canons.
II.
In addressing the question of his
disqualification, the inquiringjudge should be
mindful ofhis ethical obligations, particularly
his duty to respect and comply with the law
and act at all times in a manner that promotes
public confidence in the integrity and
impartiality of the judiciary, Canon 2A, and
his duty to disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned, Canon 3C(l).
The test [under the general
disqualification provision in Canon
3C(l)] that remains applicable at all
times, the answer to which always
depends upon the "totality of
circumstances" of each case, is
whetheraperson ofordinary prudence
in the judge's position, knowing all of
the facts known to the judge, would
find that there is a reasonable basis for
questioning the judge's impartiality.
Ex parte City ojDothan Pers. Bd., 831 So.2d
1, 11 (Ala. 2002). '''An independent and
honorablejudiciary is indispensable to justice
in our society,' and this requires avoiding all
appearance of impropriety, even to the point
of resolving all reasonable doubt in favor of
recusal." In re Sheffield, 465 So.2d 350, 357
(Ala. 1984) (quoting Canon 1).
Thus, in determining any question of
disqualification, the totality of the
circumstances should be considered. A
circumstance that should be given significant
weight by the inquiringjudge is that the Court
of the Judiciary found him to have violated
numerous canons, all relating to a question of
recusal. It specifically determined that his
failure or refusal to recuse constituted a
serious breach of the Canons and an
intentional act of misconduct. His actions
underlying the charges and the prosecution of
and verdict on those charges resulted in
substantial publicity, which brought his
judicial office into disrepute and diminished
the public's confidence in the integrityand the
impartiality of the judiciary. See
Commentary, Canon 2C ("Public confidence
in the judiciary is eroded by irresponsible or
improper conduct byjudges."). See also State
v. Moore, 988 So.2d 597,603 (Ala.Crim.App.
2007) (in finding an appearance of
impropriety in having the judge preside over
the defendant's retrial for capital murder, the
court considered the fact that the public
perception ofthe case was that it was not the
State against the defendant, as it should be,
but the prosecutor against the judge). Thus,
for an undeterminable period, the
circumstances regarding the inquiringjudge's
ADVISORY OPINION 09-902
Page 4
prior unethical exercise of his authority
regardingrecusal will inevitablypresent some
question of impropriety as to any
determination by him regarding his
disqualification orrecusal from acasepending
before him. With the passage of time, the
critical determination will remain whether
such question is a reasonable one under the
totality of the circumstances before him.
In determining the particular question of
disqualification presented in a case in which
one of the attorneys was a complainant or
material witness in the prosecution of a
disciplinary complaint against the judge, the
judge should also consider the circumstances
ofhis prosecution, such as the person's role in
the disciplinary proceedings, the judge's past
conduct toward that person, and the outcome
ofthe disciplinary proceedings. See Advisory
Opinion 84-220(the mere fact that counsel for
a party previously testified adversely to the
judge in a disciplinaryaction against thejudge
does not necessarily cause the judge's
disqualification, but the additional facts and
circumstances compelled the judge's
disqualification by presenting a reasonable
question ofthejudge's impartiality). See also
New York Advisory Opinion 89-154 (a judge
should disqualify himselfin all matters where
the disciplinary-proceedingattorney-witnesses
appear).
This disqualifying relationship extends to the
attorney's associates, investigators, and
employees, if extraordinary circumstances
exist under which the judge's impartiality
might still be reasonably questioned in a case
involving another member or employee ofthe
attorney's firm. See AdvisoryOpinion 96-616.
Compare New York AdvisoryOpinion 89-154
(where a judge's sanction for unethical
conduct was based, in part on the testimony of
several attorneys employed in the district
attorney's office and several employed in the
public offender's office, a judge should
disqualify himself in all matters where a
member of either office appears, "at least for
a reasonable time, perhaps two years, from the
date of the public censure of the judge,
particularly because both offices in the small
county are themselves small and the scope of
their involvement in the events leading up to
and including the disciplinary hearing was
extensive, making the risk ofmutual hostility
also high, at least in the public perception, but
such would not be the case necessarily if the
circumstances were that they involved a large
county with large public legal agencies and
large law firms) with New York Advisory
Opinion 98-71 (where the judge was
admonished in disciplinary proceedings
initiated on the district attorney's complaint,
the following factors militate against a
continued mandatory recusal in all cases
prosecuted by the district attorney's office:
more than two years had elapsed since the
admonition; admonition is the least severe
form ofpublic discipline; the particularmatter
involved a single incident; there is no
indication of hostility between the district
attorney and thejudge; and the judge believes
that he can be impartial, and there is nothing
to indicate that the district attorney thinks
otherwise). In addition, the closer the
professional relationship between the adverse
disciplinary-proceeding attorney and the
current-case attorney from the same firm, the
more disqualifying that relationship is. See,
e.g., New York Advisory Opinion 89-154 (a
judge should not preside over cases in which
partners and associates of the disciplinary
attorney-witness appear because of the
reasonable assumption that the attorneys in the
witness's firm share the witness's knowledge
and also because ofthe reasonable perception
ADVISORY OPINION 09-902
Page 5
ofpartiality similar to that which would arise
if the witness himself appeared before the
judge).
Regarding the appearance, in a current case, of
either the attorney who prosecuted the
disciplinary complaint against thejudgeor the
attorney who represented the judge in the
defense ofthat complaint, the mere fact ofthe
prior relationship after the disciplinary
proceeding has concluded may not present a
reasonable question of impartiality. See Ex
parte CoUon, 638 So.2d at 872-72; Advisory
Opinion 04-840 (disqualification ofajudge is
not required by the mere fact of prior
representation of the judge by an attorney in
unrelated litigation after that litigation is
completed or the representation otherwise
ceases). However, additional circumstances
may exist in which disqualification extends
for a period after the disciplinary proceedings
have concluded and/or extends to the
members of each respective attorney's firms
who had not been involved in the disciplinary
proceedings. See Ex parte City of Dothan
Pers. Ed., 831 So.2d at 8, 11; Advisory
Opinions 04-840 and 96-616. The judge's
consideration should include the
circumstances ofthedisciplinaryproceedings,
the counsel's role in those proceedings, the
time period since the prosecution, etc.
Moreover, additional extraordinary
circumstances may exist that would extend
disqualification to other members of the
prosecuting attorney's firm, e.g., if the
disciplinary attorney is an equity partner and
the case before the judge involves significant
liability or award ofdamages.
Additional circumstances pertaining to
possible disqualification because of the
appearance of the judge's attorney could also
arise from the length ofthe representation, the
nature and extent of the representation, the
amount of attorney fees involved, the nature
ofthe relationship thejudge develops with the
attorney, and whether the judge maintains a
special and close relationship with the
attorney. See Colorado Advisory Opinion 06 - See also Advisory Opinion 94-516 (once
the Commission dismissed the complaint
against the judge, that judge was no longer
disqualified in cases where a party was
represented by one of the attorneys who
represented the judge before the Commission
because no extraordinary circumstances were
present: the Commission did not find the need
to investigate the allegations ofthe complaint,
the judge's actions made the basis of the
complaint were not in dispute, and the
Commission issued a finding of "no ethical
violation" approximately six weeks after the
filing ofthe complaint). Moreover, the judge
should disqualify if his attorney volunteered
his legal services for no fee or if the judge
continues to owe his attorney for legal
representation.
The inquiringjudge asks how long, ifany, his
disqualification will continue. Such will
depend on the circumstances; See Advisory
Opinion 92-446 (in observing that the facts
known to the judge still presented a
reasonable basis for questioning the judge's
impartiality in any case where a party is
represented by anymemberofaparticular law
firm, the Commission observed, "With the
improvement of the legal atmosphere within
the judicial community of the county, the
passageoftime shouldreduce the appearances
ofpartiality and impropriety.").
Disclosure pursuant to Canon 3E could
promote public confidence in the impartiality
ADVISORY OPINION 09-902
Page 6
of the judiciary and give the parties and their
attorneys the opportunity to supply
infonnation regarding whether any additional
circumstances exist under which the judge's
impartiality might reasonably be questioned.
Id.
REFERENCES
Advisory Opinions 07-883; 04-840; 96-616;
94-530; 94-516; 93-503; 92-446; 89-384; 87
298; 84-221; 84-220.
AlabamaCanons ofJudicial Ethics, Canons 1;
2A; 2C; 3C(1); 3E; Commentary, Canon 2C.
Rules of Procedure of the Judicial Inquiry
Commission, Rule 18.
Ex parte City ofDothan Pers. Bd., 831 So.2d
1, 11 (Ala. 2002).
Balogun v. Balogun. 516 So.2d 606, 609 (Ala.
1987), abrogated on othergroundbyExParte
Crawford, 686 So.2d 196 (Ala. 1996).
Exparte Cotton, 638 So.2d 870, 871-72 (Ala.
1994), abrogated on otherground byExParte
Crawford, 686 So.2d 196 (Ala. 1996).
Ex parte Melof, 553 So.2d 554, 556 (Ala.
1989).
In re Sheffield, 465 So.2d 350, 357 (Ala.
1984).
State v. Moore, 988 So.2d 597, 603
(Ala.Crim.App. 2007).
Wallace v. Wallace, 352 So.2d 1376
(Ala.Civ.App.1977).
Colorado Advisory Opinion 06-5.
New York Advisory Opinions 98-71; 89-154.
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 Inquiry Commission. For further
infonnation, you may contact the Judicial
Inquiry Commission, P. O. Box 303400,
Montgomery, Alabama 36130-3400; tel.:
(334) 242-4089; fax: (334) 353-4043.
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