Must a judge report suspected serious lawyer misconduct to the bar, and does filing a complaint require recusal?

Plain-English summary

A judge suspected that a lawyer had lied on the record about helping a party in a related lawsuit. The judge asked whether he had to report the lawyer to the State Bar or could first discuss the conduct with the lawyer, and whether a bar complaint would disqualify him from cases involving that lawyer.

The Commission says Alabama Canon 3B(3) requires the judge to take or initiate appropriate disciplinary measures based on personal knowledge, but does not expressly require referral to the Bar. The choice of action remains within the judge's discretion if directed toward protecting the judicial system and complying with the canons. Given the seriousness of a suspected false statement to a tribunal, it says the judge should strongly consider reporting, while considering certainty and who is best suited to investigate.

A complaint against a lawyer is not generally disqualifying. The judge must examine any personal bias and all facts that could reasonably call impartiality into question under Canon 3C(1). The opinion cites a case requiring recusal where a judge harbored ongoing negative feelings toward a lawyer after filing a complaint.

In practice

The opinion separates the decision about appropriate discipline from the recusal inquiry. Neither a bar report nor a later case involving the lawyer supplies automatic recusal on its own.

Common questions

Q: Does Canon 3B(3) mandate a report to the State Bar?

A: No. The Commission says it mandates appropriate action but leaves the method to the judge’s discretion.

Q: May the judge first discuss the suspected conduct with the lawyer?

A: The opinion says the judge may reasonably do so before deciding whether to report it.

Q: Does filing a complaint automatically bar the judge from later cases involving that lawyer?

A: No. The judge must assess the particular facts for bias or a reasonable question about impartiality.

Background and rules framework

The Commission interprets Canon 3B(3) on appropriate disciplinary measures and Canon 3C(1) on recusal. It discusses Canons 1 and 2A as constraints on the judge’s response.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 1, 2A, 3B(3), 3C(1), and 3C(1)(a)

Cases:

• Ex parte Rollins, 495 So. 2d 636, 637-38 (Ala. 1986), ongoing hostility after complaint
• Matter of Sheffield, 465 So. 2d 350, 356 (Ala. 1984), impartiality standard

Other opinions cited:

• Alabama Advisory Opinions 96-598 and 97-656, discipline and recusal

See also

• AL Judicial Ethics Op. 11-905: Judge’s Family Building and Attorney Tenant
• AL Judicial Ethics Op. 11-906: Bar Foundation Funding for Jury Weeks

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 11-907

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: AUGUST 5, 2011 ADVISORY OPINION 11-907
CANON 3B(3): DUTY TO REPORT
LA WYER'S SERIOUS ETHICAL
VIOLATION
DISQUALIFICATION: JUDGE FILES
ETHICS COMPLAINT AGAINST
LITIGANT'S LAWYER
ISSUES

1. If a judge has personal knowledge of
   circumstances that lead him to believe an
   attorney has committed a serious ethical
   violation, e.g., lying to the judge, is that judge
   required by the Alabama Canons of Judicial
   Ethics to report the attorney's conduct to the
   Alabama State Bar, or may the judge meet
   directly with the lawyer, together with another
   judge as witness, to address the possible ethics
   violation? Answer: The specific action to take
   is within the judge's discretion if it is
   legitimately directed toward protecting the
   integrity of the judicial system and otherwise
   upholding his obligations under the Canons.
2. Ifthejudge files an ethics complaint with the
   Alabama State Bar against the attorney, is the
   judge disqualified from presiding in cases
   involving that attorney, and, if so, does that
   disqualification extend beyond the resolution of
   the ethics complaint? Answer: No, unless the
   specific circumstances present a ground of
   disqualification pursuant to the provisions of
   Canon 3C(l) or 3C(l)(a).
   FACTS
   A judge suspects an attorney, who represents a
   party in Lawsuit A lied to the judge by stating,
   on the record, that the plaintiff in related
   Lawsuit B filed the complaint pro se, without
   the attorney's assistance. The attorney's
   representation of the plaintiff in Lawsuit B
   would likely have generated a conflict of
   interest. The judge has reason to believe the
   attorney actually assisted the plaintiff in
   Lawsuit B prepare its case.
   DISCUSSION
3. When a judge believes a lawyer has
   violated an applicable rule or standard of
   professional conduct or has othelWise acted
   unethically, that judge's responsibilities fall
   under Canon 3B(3) of the Alabama Canons
   of Judicial Ethics: "A judge should take or
   initiate appropriate disciplinary measures
   against a judge or lawyer for unprofessional
   conduct of which the judge has personal
   knowledge." The official comment clarifies
   that "[d]isciplinary measures may include
   reporting a lawyer's misconduct to an
   appropriate disciplinary body." (Emphasis
   added.) This comment suggests that
   reporting misconduct to a disciplinary
   authority is not mandatory so long as the
   judge otherwise "take[s] or initiate[s]
   appropriate disciplinary measures."
   Withoutrecommending the specific action(s)
   a judge should take to fulfill the
   responsibilities imposed by Canon 3B(3),
   the Commission has suggested only that a
   judge must take action in response to
   suspected attorney misconduct, implicitly
   leaving the detennination ofwhat constitutes
   "appropriate disciplinary measures" to the
   judge's discretion. See Advisory Opinions
   86-264 and 89-372. More recent versions of
   the ABA Model Code of Judicial Conduct
   have imposed the heightened standard that a
   judge"shall infonn the appropriateauthority"
   of known misconduct that "raises a
   substantial question regarding the lawyer's
   ADVISORY OPINION 11-907
   PAGE 2
   honesty, trustworthiness, or fitness as a
   lawyer in other respects," while retaining the
   requirement that a judge "take appropriate
   action" when thatjudge "receives infonnation
   indicating a substantial likelihood that a
   lawyer has committed a violation ofthe Rules
   of Professional Conduct." See Rule 2.15(B)
   and (D), 2007 ABA Model Code of Judicial
   Conduct; Canon 3D(2), 1990 ABA Model
   Code of Judicial Conduct. However,
   Alabama's Canons of Judicial Ethics are
   based on the 1972 version ofthe Model Cod.e,
   which does not recognize the above
   distinction based on the lawyer's degree of
   misconduct. The mandatory reporting
   provision "fora substantial question regarding
   the lawyer's honesty, trustworthiness, or
   fitness as a lawyer in other respects" was
   added "to specifically requirejudges to report
   to a disciplinary authority significant
   misconduct oflawyers and otherjudges, so as
   to diminish the number ofinstances in which
   judges take it upon themselves to impose
   sanctions for professional misconduct without
   such reporting." Commentary to Canon 3D,
   Annotated Model Code ofJudicial Conduct of
   1990.
   Thus, although the suspected misconduct in
   this case, a false representation to a tribunal,
   might very well ''raise a substantial question
   regarding the lawyer's honesty,
   trustworthiness, or fitness as a lawyer in other
   respects," thejudge is not explicitly required,
   under Alabama's Canon 3B(3), to report the
   attorney to the State Bar. While the judge
   may certainlyreport the suspected violation to
   the State Bar, he may also reasonably
   detennine he could "take or initiate
   appropriate disciplinary measures" by first
   discussing the problem with the attorney
   before deciding whether to turn the matter
   over to the State Bar. See Advisory Opinion
   96-598 (ajudge, who suspects another judge
   of acting unethically, may fulfill his duty
   under Canon3B(3) byfirst inquiring about the
   judge's conduct, then filing a complaint with
   the Commission only upon receiving an
   ''unsatisfactoryresponse"). See also Matter of
   Hart, 577 A.2d 351 (Me. 1990) (holding,
   under identical language in that state's version
   of Canon 3B(3), that a judge had explicit
   authority to require an attorney to appear
   before the judge to discuss the lawyer's
   unethical conduct); In re Order as to
   Sanctions, 495 So. 2d 187 (Fla. Dist. Ct. App.
   1986) (listinga varietyofpossibledisciplinary
   measures under Canon 3B(3), including an
   order ofcontempt, a fine, and a reprimand, as
   well as reference of the matter to an
   "appropriate grievance committee").
   In determining whether to report the attorney
   suspected misconduct to the State Bar, the
   seriousness of the ethical violation is an
   important factor, as the more recent versions
   of the Model Code suggest. While this
   Commission has no authority to interpret the
   Alabama Rules ofProfessional Conduct, see
   Advisory Opinion 86-264, the judge should
   consult those Rules to assess the seriousness
   of the alleged misconduct. Because the
   attorney's alleged misconduct, lying to a
   judge, is clearly a serious matter, the judge
   should, while exercising independent
   judgment under Canon 3B(3), strongly
   consider reporting the matter to the State Bar.
   Furthermore, the judge should consider his
   level ofcertaintythat the attorney has actually
   engaged in unethical or dishonest conduct, as
   well as whether the judge, the State Bar, or
   another authority would be best suited to
   investigate the alleged misconduct.
   Judges should also becontinuouslymindful of
   their obligations under the other Canons of
   ADVISORY OPINION 11-907
   PAGE 3
   Judicial Ethics, including Canon 1 ("A judge
   should participate in establishing, maintaining,
   and enforcing, and should himself observe,
   high standards of conduct.") and Canon 2A
   ("A judge ... should conduct himself at all
   times in a manner that promotes public
   confidence in the integrity and impartiality of
   thejudiciary."). As with most ethics rules, the
   goal ofCanon 3B(3) and similarprovisions is
   to "insure that the integrity of the judicial
   system is preserved and maintained." James
   J. Alfini et aI., Judicial Conduct and Ethics §
   6.08, at 6-35 (4th ed. 2007). Ultimately, a
   judge's method ofhandling asituation like the
   one presented here is within that judge's
   discretion, so long as his actions are
   legitimately directed toward protecting the
   integrity ofthe judicial system and otherwise
   upholding his obligations under the Canons of
   Judicial Ethics.
4. In the event a judge files an ethics
   complaint against an attorney with the
   Alabama State Bar, that judge may have an
   obligation to disqualify himselfunder Canon
   3C(I), which states: "A judge should
   disqualify himself in a proceeding in which
   his disqualification is required by law or his
   impartialitymight reasonably be questioned."
   A list of applicable scenarios follows that
   general provision, including where the judge
   "has a personal bias or prejudice concerning a
   party." Canon 3C(l)(a). In Advisory Opinion
   85-243, the Commission advised, in a similar
   fact pattern, that the judge "should detennine
   whether there exist proper grounds for
   recusal," beforedeciding whether to withdraw
   from a case. Furthermore, a "judge's filing of
   a complaint against the attorney-litigant with
   the State Bar is ... not generallydisqualifying.
   Contempt proceedings are an analogous
   situation, and recusal is not required there."
   Advisory Opinion 97-656.
   Alabama courts have held that, under Canon
   3C(1), recusal is "required where facts are
   shown which make it reasonable for members
   ofthe public, or party, or counsel opposed to
   question the impartiality ofthe judge." Miller
   v. Miller, 385 So. 2d 54, 55 (Ala. Civ. App.
   1980); see also Wallace v. Wallace, 352 So.
   2d 1376, 1379 (Ala. Civ. App. 1977)
   (applying a "totality of the facts" test to the
   same standard). In Ex parte Rollins, 495 So.
   2d 636, 637-38 (Ala. 1986), the Alabama
   Supreme Court required recusal where the
   judge clearly harbored ongoing negative
   feelings toward an attorney against whom the
   judge had previously filed a disciplinary
   complaint. However, other jurisdictions
   advise a judge disqualified if he has filed a
   complaint against an attorney in the case. See,
   e.g., New York Joint Advisory Opinion 08­
   183 and 08-202 and 09-112.
   In the present case, the judge should consider
   the facts presented as well as all other
   circumstances in answering the question:
   "Would a person ofordinary prudence in the
   judge's position knowing all of the facts
   known to the judge find that there is a
   reasonable basis for questioning the judge's
   impartiality?" Matter ofSheffield, 465 So. 2d
   350, 356 (Ala. 1984). The judge should also
   assess the severity of the allegations in the
   complaint filed against the attorney, as well as
   any other factors that may be relevant.
   REFERENCES
   Canons 1, 2A, 3B(3), 3C(1), and 3C(1)(a).
   Commentary to Canon 3B(3).
   Advisory Opinions 97-656, 96-598, 89-372,
   86-264, and 85-243.
   ADVISORY OPINION 11-907
   PAGE 4
   Exparte Rollins, 495 So. 2d 636, 637-38 (Ala.
   1986).
   Matter o/Sheffield, 465 So. 2d 350, 356 (Ala.
   1984).
   Miller v. Miller, 385 So. 2d 54, 55 (Ala. Civ.
   App.1980).
   Wallace v. Wallace, 352 So. 2d 1376, 1379
   (Ala. Civ. App. 1977).
   Matter o/Hart, 577 A.2d 351 (Me. 1990).
   In re Order as to Sanctions, 495 So. 2d 187
   (Fla. Dist. Ct. App. 1986).
   Rule 2.15(B) and (D), 2007 ABA Model Code
   ofJudicial Conduct.
   Canon 3D(2), 1990 ABA Model Code of
   Judicial Conduct.
   Commentary to Canon 3D, Annotated Model
   Code ofJudicial Conduct of 1990.
   NewYork Joint Advisory Opinion 08-183 and
   08-202 and 09-112.
   James J. Alfini et aI., Judicial Conduct and
   Ethics § 6.08, at 6-35 (4th ed. 2007).
   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.