Could a judge try a criminal case when the judge’s brother or the brother’s partner represented the defendant?
Apply this to your situation
This page answers the general question as of 1980. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
The first of three questions in the shared letter asked whether a judge could hear a criminal case defended by the judge’s brother or the brother’s partner. The Commission answered no in both situations under its then-current reading of Canon 3C.
The PDF marks Opinion 80-88 as “[Overruled or Modified by 88-338].” Opinion 88-338 later rejected automatic disqualification based solely on a relative’s affiliation with the appearing lawyer’s firm and included 80-88 in its list of earlier opinions overruled or modified to the extent of conflict.
Currency note
The official PDF marks this answer “[Overruled or Modified by 88-338].” Opinion 88-338 names 80-88 in its list of earlier opinions affected to the extent of conflict.
This opinion was issued in 1980, after the Alabama Supreme Court’s 1975 adoption of the Alabama Canons of Judicial Ethics. Subsequent amendments or later opinions may have changed the analysis. Treat this page as historical context and verify the current Canons and linked opinion before relying on its conclusions.
Common questions
Q: What did the 1980 answer say when the brother represented the defendant?
A: The Commission said the judge could not preside.
Q: Did it give the same answer for the brother’s partner?
A: Yes. The 1980 letter treated representation by the brother’s firm as disqualifying; Opinion 88-338 later modified earlier firm-affiliation opinions to the extent of conflict.
Background and rules framework
The letter cites Canon 3C and describes the Commission’s prior fourth-degree kinship and relative’s-firm approach. Later Opinion 88-338 limits that approach for a relative affiliated with the firm rather than serving as the appearing lawyer.
Citations and references
Alabama Canons of Judicial Ethics:
- Canon 3C
See also
- AL Judicial Ethics Op. 88-338: Relative in Appearing Lawyer’s Firm
- AL Judicial Ethics Op. 80-96: Daughter or Her Firm Appears
Source
- Landing page: Alabama JIC advisory opinions
- Original PDF: Advisory Opinions 80-88 through 80-90
- Later modifying opinion: Advisory Opinion 88-338
- Canon history: Alabama JIC, Canons of Judicial Ethics
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
80-88
[Overruled or Modified by 88-338]
80-89
80-90
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
August 25, 1980
The Judicial Inquiry Commission has considered your request for an opinion concerning the disqualification of judges in certain cases where a lawyer-relative represents one of the parties. Your specific questions are as follows: (1) May a Judge preside at the trial of criminal cases when the judge’s brother or his brother’s partner represents the defendant? 80-88 (2) May a Judge preside at the trial of criminal cases in which his son acts as Assistant District Attorney? 80-89 (3) Does the fact that a judge’s son is associated with the office of the District Attorney for his circuit preclude the judge from presiding over the trial of any criminal cases? 80-90 This Commission has held on several previous occasions that under Canon 3C of the Alabama Canons of Judicial Ethics a judge is disqualified from hearing any case in which he is related in the fourth degree of affinity or consanguinity to an attorney representing a party to the proceeding. We have further held that a judge is also disqualified if such a relative’s law firm represents a party to the proceeding even though the lawyer-relative does not participate in the proceeding. In keeping with these prior opinions, it is the opinion of the Commission that a judge may not preside at the trial of criminal cases when the judge’s brother or the judge’s brother’s partner represents the defendant. It is further our opinion that a judge may not preside at the trial of a criminal case in which the judge’s son acts as Assistant District Attorney. However, since an Assistant District Attorney working in the office of the District Attorney may have no conceivable financial interest in the outcome of the trial of a criminal case in which that specific Assistant District Attorney does not participate, the Assistant District Attorney’s father is not automatically disqualified from sitting as judge in criminal cases in which the Assistant District Attorney does not participate. Sincerely,
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