Is a judge automatically disqualified when a campaign opponent’s law partner represents a litigant?

Plain-English summary

The judge’s announced election opponent practiced in a small partnership whose lawyers routinely appeared in each other’s cases. The Commission concluded that the opponent’s campaign status did not automatically disqualify the judge from matters handled by another partner. Alabama did not impute an attorney’s appearance-based disqualification to every member of the firm.

The Commission distinguished cases in which the opposing candidate personally appeared. For a partner’s appearance, the judge would be disqualified if that attorney’s own campaign activity reasonably called impartiality into question or if the judge had personal bias or prejudice concerning a party. Mere representation by a political supporter or an opponent’s supporter did not itself establish disqualification.

If Canon 3C(1) did not disqualify the judge, the judge could appoint the opposing candidate’s firm members to represent indigent criminal defendants.

In practice

For the partner appearing in the submitted cases, the opinion directs attention to that lawyer’s own activity and any bias or reasonable question of impartiality. The campaign opponent’s status alone does not extend automatically across the firm.

Common questions

Q: Does the campaign opponent’s status automatically disqualify the judge in a partner’s case?

A: No. The opinion says Alabama has no blanket firm-wide imputation rule for this setting.

Q: When could that partner’s case require recusal?

A: If the partner’s own campaign activity reasonably calls impartiality into question, or the judge has personal bias or prejudice concerning a party.

Q: May the judge appoint the partner for indigent defense?

A: Yes, unless the judge is disqualified under Canon 3C(1).

Background and rules framework

The opinion reads Canon 3C’s disqualification standard with Canon 7’s election context. It applies Canon 3C(1)’s impartiality inquiry and Canon 3C(1)(a)’s bias provision to the particular attorney appearing before the judge.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C
• Canon 3C(1)
• Canon 3C(1)(a)
• Canon 7

Cases:

• In re Sheffield, 465 So. 2d 350, 356 (Ala. 1984), ordinary-prudence impartiality test
• Miller v. Miller, 385 So. 2d 54, 55 (Ala. Civ. App. 1980), campaign opponent support

Other opinions cited:

• Alabama Advisory Opinions 98-694 and 94-520, an opposing candidate’s appearance after announcement
• Alabama Advisory Opinions 04-842 and 91-420, counsel’s political relationship and firm members

See also

• AL Judicial Ethics Op. 94-520: Opposing Candidate as Counsel
• AL Judicial Ethics Op. 91-420: Campaign Treasurer as Counsel

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 17-933

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: August 4, 2017 ADVISORY OPINION 17-933
DISQUALIFICATION: LAW PARTNER OF ANNOUNCED CANDIDATE OPPOSING JUDGE IN UPCOMING ELECTION REPRESENTS LITIGANT APPOINTMENT POWER: LAW PARTNER OF ANNOUNCED CANDIDATE OPPOSING JUDGE IN UPCOMING ELECTION ISSUES I. Is a judge automatically disqualified from presiding in any case in which the law partner of the current-campaign candidate opposing the judge represents a litigant? Answer: No. II. May the judge appoint, to represent indigent defendants in criminal cases, the law partner of the judge’s current-campaign opponent? Answer: Yes, if the judge is not disqualified. FACTS An announced candidate opposing the judge in the upcoming election is in a small partnership with other attorneys. It is the practice of all law partners to appear in each other’s cases, both in pleadings and in court appearances, without prior notice to the Court or to opposing parties and without regard to which attorney is formally listed in the court files as representing a certain party in the case. DISCUSSION I. The disqualification provision of Canon 3C must be read in conjunction with Canon 7 and considered in light of the reality that judges in Alabama are subject to nomination and election through political campaigns. Advisory Opinion 91-420. In addition, lawyers are charged with advancing the administration of justice, which includes participating in the evaluation of judicial candidates and often encompasses supporting a judicial candidate. Ethics opinions in other jurisdictions are split on the issue whether a judge is disqualified in cases where an attorney representing a litigant is an announced candidate against the judge in the upcoming election. See, for example, opinions listed in Kentucky Judicial Ethics Opinion JE-83. However, in Alabama, the rules are clear:

• Where the case was filed after the attorney announced his/her candidacy, the judge is disqualified. Advisory Opinions 98-694; 94-520.
• Where the case was pending before the judge prior to the attorney’s announcement of his/her candidacy and the attorney was in the case at that time, the judge is not automatically disqualified. Rather, the judge is disqualified only if (1) facts and ADVISORY OPINION 17-933 PAGE 2 circumstances exist arising out of the campaign that cause the judge to harbor a personal bias or prejudice toward either the attorney or his/her clients, Canon 3C(1)(a), or (2) other facts or circumstances exist that cause the judge’s impartiality to be reasonably questioned. Canon 3C(1).
• Where the candidate appears late in the case, the judge—for the sake of judicial economy and to the end that justice may be fairly administered—might consider whether, as a matter of law, the attorney should be disqualified from making a late appearance in the proceeding. Advisory Opinion 88-336. In Advisory Opinion 95- 548, the Commission explained:
  [T]his appears to be a matter committed to the judge’s discretion upon consideration of the factors generally applicable to questions involving changes of counsel and requests for continuances associated therewith. In other words, it is the Commission’s opinion that the judge in such a situation should determine whether a change of counsel and concomitant continuance is appropriate under the facts in the case. If it is, then the judge should recuse himself . . .; if it is not, then he may proceed with the lawsuit and refuse to permit employment of new counsel. These rules apply only to the appearance of the candidate in the judge’s court. Alabama does not have a blanket rule where disqualification arising from a particular attorney’s appearance extends to any member of the attorney’s law firm. See, e.g., Advisory Opinion 04-842 (disqualification due to the appearance of an attorney who represents a party-opponent in litigation involving the judge ordinarily applies only to the particular attorney involved in the litigation, not to other members of the attorney’s firm). Both this Commission and the appellate courts in this state have generally held that mere representation of a party by a political supporter of the judge or of an opposing candidate of the judge in a current election does not cause a judge’s impartiality to be reasonably questioned. For example, in Advisory Opinion 91-420, the Commission advised the judge is not disqualified by the mere fact that a party is represented by (1) the judge’s reelection campaign treasurer or a member of his/her firm or (2) a member of the judge’s reelection advisory committee or members of their firms. However, the Commission cautioned that, under the provisions of Canon 7, a judge must be ever mindful that political entanglements do not become involved or appear to become involved in judicial decisions. See also Miller v. Miller, 385 So. 2d 54, 55 (Ala. Civ. App. 1980) (the judge was not disqualified although a litigant supported the judge’s campaign opponent). The campaign activity of the particular attorney before the judge should be evaluated for disqualification purposes, rather than imputing one attorney’s disqualification to the other ADVISORY OPINION 17-933 PAGE 3 attorneys in the firm. Thus, the judge would be disqualified where, because of that particular attorney’s campaign activity, (1) the judge’s impartiality might reasonable be questioned, Canon 3C(1), or (2) the judge has a personal bias or prejudice concerning a party. Canon 3C(1)(a). As for the general provision of disqualification, the test is whether a “person of ordinary prudence in the judge’s position knowing all of the facts known to the judge find[s] that there is a reasonable basis for questioning the judge’s impartiality.” (Emphasis added.) In re Sheffield, 465 So. 2d 350, 356 (Ala. 1984), quoting Thode, The Code of Judicial Conduct—The First Five Years in the Courts, 1977 Utah L.Rev. 395, 402. In determining the existence of personal bias or prejudice concerning a party, the following should be considered: “[T]he law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea.” Ex parte Balogun, 516 So. 2d 606, 609 (Ala. 1987), quoting Fulton v. Longshore, 156 Ala. 611, 46 So. 989 (1908). Any disqualifying prejudice or bias as to a party must be of a personal nature and must stem from an extrajudicial source. Hartman v. Board of Trustees of the University of Alabama, 436 So. 2d 837 (Ala. 1983); Reach v. Reach, 378 So. 2d 1115 (Ala. Civ. App. 1979). Thus,
  [T]he disqualifying prejudice of a judge does not necessarily comprehend every bias, partiality, or prejudice which he may entertain with reference to the case, but must be of a character, calculated to impair seriously his impartiality and sway his judgment, and must be strong enough to overthrow the presumption of his integrity. Ross v. Luton, 456 So. 2d [249,] 254 [(Ala. 1984)], quoting Duncan v. Sherrill, 341 So. 2d 946, 947 (Ala. 1977), quoting 48 C.J.S. Judges § 82(b). Ex parte Melof, 553 So. 2d 554, 557 (Ala. 1989). Absent either narrow circumstance of disqualification—a reasonable question as to the judge’s impartiality or the judge’s bias or prejudice concerning a party—the judge is not disqualified. However, a judge may recuse from presiding when he considers the circumstances warrant such action. Once a motion to recuse is filed, the question expands beyond ethical considerations to factual and legal ones. Advisory Opinion 09-902. II. Unless the judge is disqualified under Canon 3C(1), the judge may appoint members of his campaign opponent’s law firm to represent indigent defendants. ADVISORY OPINION 17-933 PAGE 4 REFERENCES Alabama Canons of Judicial Ethics, Canons 3C; 3C(1); 3C(1)(a); 7. Alabama Advisory Opinions 09-902; 04-842; 98-694; 95-548; 94-520; 91-420; 88-336. Ex parte Melof, 553 So. 2d 554, 557 (Ala. 1989). In re Sheffield, 465 So. 2d 350, 356 (Ala. 1984). Miller v. Miller, 385 So. 2d 54, 55 (Ala. Civ. App. 1980). Kentucky Judicial Ethics Opinion JE-83.
  _______
  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 information, you may contact the Judicial Inquiry Commission, P. O. Box 303400, Montgomery, Alabama 36130-3400; tel.: (334) 242-4089; fax: (334) 353-4043.