Must a former DHR lawyer recuse as judge from cases involving DHR records she reviewed or motions she filed?

Plain-English summary

The inquiring judge had worked as an assistant attorney general for Alabama's Department of Human Resources and supervised a DHR legal office. She and other lawyers there filed motions for protective orders and in camera inspection of DHR records subpoenaed in domestic relations cases. She personally screened responsive records, but did not regularly review the other lawyers' motions or help create the records.

The Commission distinguishes the routine filing of those motions from substantive service as a lawyer in the underlying domestic relations matter. It says the filing was administrative and pro forma for Canon 3C(1)(b). Still, the judge is disqualified under Canons 2 and 3C(1) from inspecting records or deciding motions she personally filed.

Canon 3C(1)(a) also disqualifies her from cases in which she personally reviewed responsive DHR records. That prior work gave her, or appeared to give her, personal knowledge of disputed evidentiary facts from outside her judicial role. The same result applies when she personally participated as the DHR legal office's supervisor, even if she did not sign the motion. The Commission does not disqualify her merely because a subordinate filed a motion in a matter in which she did not participate.

Canon 3D allows remittal only for the specified grounds in Canons 3C(1)(c) and (d). The Commission says this disqualification under Canon 3C(1)(a) cannot be remitted even if the parties and their lawyers agree to waive recusal.

In practice

The opinion turns on what the former DHR lawyer personally did in each case: reviewing responsive records, filing a motion, or participating in supervision differs from a subordinate's filing without her involvement. It treats party consent as unable to remove the judge's disqualification on these facts.

Common questions

Q: Does a subordinate's DHR motion automatically disqualify the former supervisor?

A: No. The Commission says the judge is not disqualified from a case in which she did not personally participate in any particular matter as a supervisor.

Q: What if the judge reviewed DHR records before taking the bench?

A: The Commission says she is disqualified from the underlying case under Canon 3C(1)(a) because the review supplied, or appeared to supply, personal knowledge of disputed evidentiary facts from an extrajudicial source.

Q: Can the parties waive the disqualification?

A: No. The Commission says Canon 3D does not permit remittal of this Canon 3C(1)(a) disqualification, even with the parties' and lawyers' agreement.

Background and rules framework

The opinion applies Alabama Canons 2 and 3C(1), especially the prior-lawyer ground in 3C(1)(b) and the personal-knowledge ground in 3C(1)(a). It reads Canon 3D as limiting remittal to disqualifications under 3C(1)(c) and (d).

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 1, 2, 3C(1), 3C(1)(a), 3C(1)(b), and 3D.

Cases:

• In re Sheffield, 465 So. 2d 350 (Ala. 1984), quoted for the reasonable-observer test for impartiality.
• Ex parte Duncan, 638 So. 2d 1332 (Ala. 1994), cited through Advisory Opinion 02-793 on appearance of impartiality.

Other opinions cited:

• Alabama JIC Advisory Opinion 02-793, on the matter in controversy and appearance of impartiality.
• Alabama JIC Advisory Opinions 13-917 and 13-918, on prior service and extrajudicial knowledge.
• New York Advisory Opinion 20-43, on a former lawyer's personal participation.

See also

• NE Judicial Ethics Op. 01-2: Former Prosecutor and Child Support Recusal
• DC Judicial Ethics Op. 6: Prosecutor Spouse Recusal

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 25-969

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: AUGUST 7, 2025 ADVISORY OPINION 25-969
DISQUALIFICATION: PRIOR
SERVICE AS ATTORNEY FOR
DEPARTMENT OF HUMAN
RESOURCES
ISSUE
Is a judge disqualified from cases
in which motions for protective
orders and in camera inspections of
DHR records were filed either by the
judge while serving as an attorney for
DHR or by an attorney under the
judge’s supervision?
Answer: The judge is disqualified
from cases in which she personally
filed such motions, but she is not
disqualified from cases where such
motions were filed by attorneys under
her supervision.
May the parties waive the judge’s
disqualification?
Answer: No. The judge’s
disqualification is not subject to
remittal under Canon 3D.
FACTS
A judge previously served as an
assistant attorney general for the
Alabama Department of Human
Resources (“DHR”) and was a
supervisor over the legal office in
which the judge worked. The judge
did not supervise any other divisions
within the agency. In that capacity,
the judge and attorneys under the
judge’s supervision routinely filed
motions for protective orders and
requests for in camera inspections of
DHR records that had been
subpoenaed by litigants in domestic
relations cases—e.g., divorce, child
custody, etc. The judge, however, did
not regularly review the motions filed
by other attorneys in the legal office.
While drafting these motions, the
judge reviewed records responsive to
the subpoenas to screen for
confidential or privileged
information. The judge, however, was
not involved in any way in the
creation of the records.
The judge was recently appointed
and has been assigned domestic
relations cases. Some of these cases
are matters in which the judge, while
an assistant attorney general, or
attorneys under her supervision filed
motions for protective orders and
requests for in camera inspections of
DHR records. In some of these cases,
those motions are still pending.
DISCUSSION
Canon 3C(1) governs the
disqualification of judges. That
Canon provides, in pertinent part:
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:
(a) He [or she] has a
personal bias or
prejudice concerning a
party, or personal
knowledge of disputed
evidentiary facts
ADVISORY OPINION 25-969
PAGE 2
concerning the
proceeding;
(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.
Additionally, Canon 2 provides, “A
judge should avoid impropriety and
the appearance of impropriety in all
his [or her] activities.” The test for
disqualification under Canon 3C(1)
is: “Would a person of ordinary
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?” In re Sheffield, 465 So.
2d 350, 356 (Ala. 1984).
Accordingly, “the question under
Canon 3C(1) is not whether the judge
is impartial in fact, but rather whether
another person, knowing all of the
circumstances, might reasonably
question the judge’s impartiality.”
Advisory Opinion 02-793 (citing Ex
parte Duncan, 638 So. 2d 1332, 1334
(Ala. 1994)).
First, a judge is disqualified under
the specific instance enumerated in
Canon 3C(1)(b) if the judge served as
a lawyer in the matter in controversy
before the judge. The phrase “matter
in controversy” does not apply only
to the specific matter before the
judge. Advisory Opinion 13-917.
Cases involve the same “matter in
controversy” if the same fact, event,
course of events, circumstance,
situation, or question is relevant to
both cases. Advisory Opinion 02-793
(citing Rushing v. City of Georgiana,
361 So. 2d 11, 12 (Ala. 1978)).
Here, the cases before the judge
are domestic relations cases—e.g.,
divorces, child custody cases, etc. At
times, parties in these cases subpoena
relevant records from DHR. DHR, in
turn, files motions for in camera
inspection of DHR records and for
protective orders limiting the
disclosure and use of the records only
to those records that are “material to
the issues before the court” or for
other purposes allowed under state
law. See generally Ex parte Esteban,
361 So. 3d 202, 207–11 (Ala. Civ.
App. 2021) (discussing the
confidential status of DHR records
and whether those records may be
subpoenaed). As an assistant attorney
general for DHR and supervisor of a
DHR legal office, the judge and
attorneys under the judge’s
supervision regularly filed these
motions on behalf of DHR.
Matters involving the custody,
care, and support of children are
rarely ever completely unrelated.
Advisory Opinion 02-793. Certainly,
if the judge, while serving as a lawyer
for DHR, had participated in any
matter—e.g., providing legal advice
during an investigation or assisting in
the creation of any reports or
ADVISORY OPINION 25-969
PAGE 3
records—that would be relevant to
the issues in the case at bar, then the
judge would be disqualified under
Canon 3C(1)(b). The judge, however,
did not personally participate in the
creation of any of the reports or
records being subpoenaed nor in any
of the investigations underlying those
reports or records.
Furthermore, for a judge to have
“served as a lawyer” in a matter, his
or her prior involvement must have
“been more than simply
administrative or pro forma.” Arthur
H. Garwin et al., Annotated Model
Code of Judicial Conduct 329 (3d ed.
2016). The only involvement of DHR
in these cases is responding to a
subpoena for records. From the
judge’s standpoint as a DHR lawyer,
this process is routine and “pro
forma” to ensure DHR’s compliance
with the relevant confidentiality
provisions of state law. Once the
subpoena is issued, DHR must
respond, and the trial court must
review the records to determine if
there is any material evidence
contained in them. Ex parte Riggs,
423 So. 2d 202, 203 (Ala. 1982).
Though the act of filing the
motions for protective orders and in
camera inspections of records is
administrative and “pro forma,” the
judge is disqualified from conducting
in camera inspections of records and
ruling on the motions that the judge
1
Although the judge’s prior service as a
lawyer for DHR, in this instance, is not
sufficient to require her disqualification
under Canon 3C(1)(b), the judge is still
personally filed. See Canons 2 &
3C(1). However, it is the opinion of
the Commission that, for the purpose
of Canon 3C(1)(b), the judge has not
“served as a lawyer” in the underlying
case pending before the judge
because the judge’s limited act of
filing motions for protective orders
and in camera inspections of records
was “pro forma.” As such, the judge
is not disqualified under Canon
3C(1)(b).
Nevertheless, the judge is
disqualified from the underlying
cases in which she personally
reviewed records responsive to these
subpoenas under Canon 3C(1)(a). By
reviewing the DHR records
responsive to these subpoenas, the
judge obtained, or at the very least
has created the appearance of having
obtained, personal knowledge of
disputed evidentiary facts. New York
Advisory Opinion 20-43. For a judge
to be disqualified under Canon
3C(1)(a), the judge’s personal
knowledge must be derived from an
extrajudicial source—i.e., not learned
in the judge’s official capacity.
Advisory Opinions 93-510 & 13-917.
Here, the judge’s knowledge comes
from her prior service as an assistant
attorney general for DHR.1
See
Advisory Opinion 13-918. Certainly,
if the DHR records that the judge
reviewed are found to be “material”
to issues that are currently before the
court, then those records may be used
required to disqualify under Canon 3C(1)(a)
if the judge gained personal knowledge
while serving in that capacity since it is
derived from an extrajudicial source.
ADVISORY OPINION 25-969
PAGE 4
as evidence to prove a disputed
evidentiary fact. Even if the records
are determined to not be “material,”
and, thus, not subject to disclosure or
use in the underlying case, a
reasonable person might still question
the judge’s impartiality where the
judge had previously reviewed that
evidence outside of a judicial
proceeding. See Sheffield, 465 So. 2d
at 357 (“As stated in Canon 1 of the
Code of Judicial Ethics, ‘An
independent and honorable judiciary
is indispensable to justice in our
society,’ and this requires avoiding
all appearance of impropriety, even
to the point of resolving a reasonable
doubt in favor of recusal.” (Italics in
original.))
Additionally, the judge is
disqualified from any cases in which
she personally participated as a
supervisor. While the judge may not
have personally signed or filed the
motions in each case, the judge still
might have obtained personal
knowledge of a disputed evidentiary
fact in any case where she
participated as the supervisor of the
DHR legal office. The judge is
disqualified even if her involvement
was only minimal. New York
Advisory Opinion 20-43. On the other
hand, the judge is not disqualified
from cases where she did not
participate in any particular matter in
her capacity as supervisor. Id.
Lastly, because the judge’s
disqualification falls under Canon
3C(1)(a), the judge’s disqualification
may not be remitted. Canon 3D
outlines the process for remittal of a
judge’s disqualification. That Canon
expressly limits the remittal process
to disqualification under Canons
3C(1)(c) and 3C(1)(d). Therefore, the
judge’s disqualification is not subject
to remittal.
This remains true even if the
parties and the parties’ attorneys
agree to “waive” the judge’s recusal.
See Guthery v. Guthery, 409 So. 2d
844, 846 (Ala. Civ. App. 1981).
While it is possible that the issue of a
judge’s recusal may be waived on
appeal, see General Motors Corp. v.
Jernigan, 883 So. 2d 646 (Ala. 2003),
the judge’s duty to disqualify is an
ethical obligation prescribed by the
Canons. See Canon 1. Thus, once the
judge is aware that he or she is
disqualified from a case, the judge
must disqualify himself or herself
from that case unless that
disqualification may be remitted
under the procedure outlined in
Canon 3D. Because the judge’s
disqualification in this instance, is
not subject to remittal, the judge must
disqualify and the parties may not
“waive” the judge’s disqualification.
REFERENCES
Alabama Canons of Judicial Ethics 1,
2, 3C(1), 3C(1)(a), 3C(1)(b), 3D.
Alabama JIC Advisory Opinions 93-
510, 02-793, 13-917, 13-918.
Arthur H. Garwin et al., Annotated
Model Code of Judicial Conduct 329
(3d ed. 2016).
ADVISORY OPINION 25-969
PAGE 5
Ex parte Esteban, 361 So. 3d 202
(Ala. Civ. App. 2021).
Ex parte Riggs, 423 So. 2d 202 (Ala.
1982).
General Motors Corp. v. Jernigan,
883 So. 2d 646 (Ala. 2003).
Guthery v. Guthery, 409 So. 2d 844
(Ala. Civ. App. 1981).
In re Sheffield, 465 So. 2d 350 (Ala.
1984).
New York Advisory Opinion 20-43.
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].