May a judge hear cases involving a lawyer who rents space in a family-owned building in which the judge holds an interest?
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This page answers the general question as of 2011. 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 and the judge's brother held interests in a family partnership that owned the brother's law-office building. Another lawyer proposed paying rent to the brother or sharing building-maintenance costs. The judge received no cash distributions and had no control over the partnership. The Commission nevertheless concluded that the judge was disqualified in cases involving that lawyer.
Under Canon 3C(1), the lawyer's payments would benefit the property in which the judge held an interest, and the benefit could depend on the lawyer's financial success. The opinion says the general impartiality ground cannot be remitted under Canon 3D. It expressly withdraws contrary remittal advice from Opinions 91-428 and 91-432.
If the lawyer regularly appears or is likely to appear in the judge's court, the Commission says Canons 5C(1) and 5C(3) prohibit continuing that property investment under the proposed arrangement. It treats the separate question of appointing the lawyer as moot because of the property-interest conclusion.
In practice
The opinion rejects both hearing cases involving the proposed attorney tenant and retaining the property interest if that attorney regularly practices before the judge.
Common questions
Q: Does receiving no cash distribution avoid recusal?
A: No. The opinion treats rent or maintenance paid for the property as a financial benefit to the judge’s interest.
Q: Can the parties remit this disqualification?
A: No. The Commission says this Canon 3C(1) ground is nonremittable.
Q: May the judge retain the property interest if the lawyer regularly appears?
A: No. The opinion applies Canons 5C(1) and 5C(3) to prohibit that investment under the proposed arrangement.
Background and rules framework
The Commission applies Canon 3C(1)’s reasonable-impartiality standard and Canon 5C’s limits on financial interests that cause disqualification. It discusses Canon 3D remittal and Canon 2C concerns.
Citations and references
Alabama Canons of Judicial Ethics:
- Canons 2C, 3C(1), 3D, 5C(1), 5C(2), and 5C(3)
Cases:
- In re Sheffield, 465 So. 2d 350 (Ala. 1984), impartiality standard
- Ex parte Duncan, 638 So. 2d 1332 (Ala. 1994), objective impartiality inquiry
Other opinions cited:
- Alabama Advisory Opinions 06-864 and 81-115, attorney tenants
- Alabama Advisory Opinions 91-428 and 91-432, earlier remittal advice withdrawn
See also
- AL Judicial Ethics Op. 11-906: Bar Foundation Funding for Jury Weeks
- AL Judicial Ethics Op. 11-907: Reporting Lawyer Misconduct and Recusal
Source
- Landing page: Alabama JIC advisory opinions
- Original PDF: Advisory Opinion 11-905
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Full opinion text unavailable from the official source; see the linked source above for the complete text.
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