May a judge hear a divorce and custody case after previously advising the husband about the family dispute?

Short answer The Commission concluded that the judge was disqualified because he had served as a lawyer in the matter in controversy; it said the disqualification could not be remitted.
Bar
JUDICIAL-AL
Issued
November 2, 1983

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This page answers the general question as of 1983. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

Several years before taking the bench, the judge advised a husband about the return of his estranged wife and children to Alabama. The same couple later had a divorce and child custody action before the judge.

The Commission concluded that Canon 3C(l)(b) disqualified the judge because he had served as a lawyer in the matter in controversy. It also said that Canon 3D did not allow that disqualification to be remitted.

Currency note

This opinion was issued in 1983, 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: Why was the judge disqualified?

A: The Commission treated the earlier advice to the husband as legal service in the matter in controversy.

Q: Could the disqualification be remitted?

A: No. The Commission expressly said it could not be remitted under Canon 3D.

Background and rules framework

The opinion applies Canon 3C(l)(b) to prior service as a lawyer in the matter in controversy and Canon 3D to remittal.

Citations and references

Alabama Canons of Judicial Ethics:

  • Canon 3C(l)(b)
  • Canon 3D

See also

Source

Original opinion text

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

83-197
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
November 2, 1983
The Commission has received your letter requesting an advisory opinion on whether you are disqualified from presiding in a divorce action in view of the circumstances you describe. In the Commission’s opinion, a judge, who while an attorney several years earlier, advised a husband concerning the return of his estranged wife and children to Alabama is disqualified from presiding over a subsequent divorce and child custody action involving the couple and their children. The disqualification is required under Canon 3C(l)(b), because he has “served as a lawyer in the matter in controversy.” The disqualification cannot be remitted under Canon 3D. Yours very truly, JUDICIAL INQUIRY COMMISSION

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