Must an appellate judge recuse whenever a former Attorney General division appears in an appeal?

Plain-English summary

The appellate judge had worked as an assistant attorney general in a division that handled the kind of appeals now before the judge's court. The judge had appeared as counsel in some cases and materially assisted other attorneys in others. The judge had no supervisory authority over colleagues and had been screened from new cases that might reach the court.

Canon 3C(1)(b) addresses a judge's earlier service as a lawyer in the matter in controversy. Its commentary says lawyers in the same government agency are not necessarily associated for that provision, although a former government lawyer must still disqualify if impartiality might reasonably be questioned because of the association.

The Commission says the judge will disqualify from appeals in which the judge appeared as counsel or materially assisted counsel. For other appeals, the division's appearance alone does not disqualify the judge if the judge did not participate in the case and impartiality cannot reasonably be questioned. A footnote gives supervisory authority over the division handling a matter as an example that could raise such a question even without personal participation.

In practice

The opinion separates the judge's own past work on an appeal from mere employment in the same government division as counsel. It also preserves the general impartiality test where the judge's former role creates a reasonable concern.

Common questions

Q: Does working in the same Attorney General division as current appellate counsel require recusal?

A: No, not by itself. The Commission requires that the judge did not participate in the appeal and that impartiality cannot reasonably be questioned because of the prior division service.

Q: What if the judge assisted another attorney in the appeal without appearing as counsel?

A: The opinion says the inquiring judge will disqualify from cases in which the judge provided material assistance, as well as those in which the judge appeared as counsel of record.

Q: Does the answer cover a former division supervisor?

A: The inquiring judge had no supervisory authority. The Commission's footnote says such authority over the division handling a matter might reasonably call impartiality into question even without personal work on that case.

Background and rules framework

The opinion interprets Alabama Canon 3C(1)(b) and its commentary on former government lawyers. It also applies Canon 3C(1)'s general question whether impartiality might reasonably be questioned.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C(1)(b) and its commentary.

Other opinions cited:

• Alabama JIC Advisory Opinions 92-460 and 94-522, on a former prosecutor's participation in cases later before that person as judge.

See also

• AL Judicial Ethics Op. 25-969: Former DHR Lawyer's Recusal
• NE Judicial Ethics Op. 01-2: Former Prosecutor and Child Support Recusal

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 25-964

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: JANUARY 21, 2025 ADVISORY OPINION 25-964
DISQUALIFICATION: PRIOR
SERVICE IN ATTORNEY
GENERAL’S OFFICE
ISSUE
Is an appellate judge disqualified
from certain criminal appeals
involving a division of the Office of
the Attorney General based on prior
service in that same division?
Answer: No, as long as the judge
did not personally participate in the
case and the judge’s impartiality
cannot reasonably be questioned
because of the judge’s prior service in
that division.
FACTS
An appellate judge previously
served as an Assistant Attorney
General in a division of the Office of
the Attorney General that exclusively
handles certain cases. During the
judge’s tenure, the judge has
appeared as attorney of record in a
number of cases before the judge’s
court and has materially assisted
other attorneys in other cases, though
not appearing as counsel of record.
The judge did not exercise any
supervisory authority over any other
attorneys during his tenure as an
Assistant Attorney General.
Pursuant to Canon 3C(1)(b), the
judge will disqualify from cases in
which the judge previously appeared
as counsel of record and cases in
which he has provided material
assistance to other attorneys while
not appearing as counsel of record.
Furthermore, the judge has been
actively screened from any new cases
that might come before the judge’s
court.
DISCUSSION
Disqualification is governed by
Canon 3C. Canon 3C(1) provides:
A judge should disqualify
himself [or herself] in a
proceeding in which his [or
her] disqualification is
required by law or his [or her]
impartiality might reasonably
be questioned, including but
not limited to instances where:
. . . .
(b) He [or she] served
as a lawyer in the matter
in controversy, or a
lawyer with whom he [or
she] previously practiced
law served during such
association as a lawyer
in the matter, or the
judge or such lawyer has
been a material witness
concerning it.
The Commentary to Canon 3C(1)(b)
further provides:
A lawyer in a governmental
agency does not necessarily
have an association with other
lawyers employed by that
agency within the meaning of
this subsection; a judge
formerly employed by a
governmental agency,
ADVISORY OPINION 25-964
PAGE 2
however, should disqualify
himself [or herself] in a
proceeding if his [or her]
impartiality might reasonably
be questioned because of such
association.
Thus, judges who have formerly
served as lawyers for government
agencies do not have an association
with other lawyers within that same
agency for the purposes of
disqualification under Canon
3C(1)(b).
Accordingly, the Commission has
recognized that former assistant
district attorneys are not disqualified
from acting as a judge in subsequent
criminal cases brought by the district
attorney’s office in which the judge
formerly served, provided that the
judge did not participate in the case
in any way. Advisory Opinion 94-
522; Advisory Opinion 92-460
(quoting William Wayne Kilgarlin &
Jennifer Bruch, Disqualification and
Recusal of Judges, 17 ST. MARY’S
L.J. 599, 614 (1986)) (“If the judge
did not participate in the
investigation, preparation, or
presentation of the case, the mere fact
that he was in the office of the district
attorney has been held not to be
grounds for disqualification.”).
This same reasoning applies
equally to judges who prosecuted
appeals in the Office of the Attorney
1
An example of when a judge’s impartiality
might reasonably be questioned based on a
judge’s prior service as a government
lawyer might be where the judge had
General as assistant attorneys
general. Therefore, the inquiring
judge is not disqualified from any
case in which the division of the
Office of the Attorney General in
which the judge previously served
appears as counsel in a case before
the judge’s court as long as the judge
did not participate in the case and the
judge’s impartiality cannot
reasonably be questioned based on
the judge’s prior service in that
division.1
REFERENCES
Alabama Canons of Judicial Ethics
3C(1)(b) and Commentary.
Alabama JIC Advisory Opinions 92-
460 and 94-522.
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 Alabama 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;
email: [email protected].
supervisory authority over the particular
government agency or division that handled
the matter even though the judge may not
have participated personally in the matter.