May a judge hear a bank dissolution settlement after the judge and a former law partner represented interests in related liquidation matters?

Plain-English summary

Before taking the bench, the judge represented an estate holding shares in a bank being liquidated. The judge’s then law partner represented the FDIC in related collection proceedings. The question was whether the judge could hear the FDIC petition for final settlement of the bank’s dissolution.

The Commission found that impartiality might reasonably be questioned under Canon 3C. Even if the earlier work was technically outside the exact matter in controversy, it was closely related. The Commission said this disqualification could not be remitted under Canon 3D.

Currency note

This opinion was issued in 1985, 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: Was the judge disqualified from the FDIC final-settlement petition?

A: Yes. The Commission said the earlier representations were close enough to require disqualification.

Q: Could the parties remit this disqualification under Canon 3D?

A: No. The Commission expressly said it was not remittable under Canon 3D.

Background and rules framework

The opinion quotes Canon 3C(1)(b), concerning a judge’s or former law partner’s legal service in a matter in controversy, and applies Canon 3C’s reasonable-question standard to closely related matters. It also addresses Canon 3D remission.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C
• Canon 3C(1)(b)
• Canon 3D

See also

• AL Judicial Ethics Op. 85-241: Prior Bank Account

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 85-233
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

85-233
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
April 30, 1985
The Judicial Inquiry Commission has considered your request for an opinion concerning whether a judge is disqualified or should recuse himself in certain proceedings. Under the facts presented, prior to the judge assuming the bench, his law partner represented the FDIC in collection proceedings arising out of the liquidation of a certain bank. Also, the judge represented the executrix of an estate which owned outstanding shares of the bank. The estate will be entitled to share in the distribution of the bank assets. The specific question presented is whether the judge is disqualified from hearing the FDIC petition for final settlement of the dissolution of the bank in question. It is the opinion of the Commission that the judge is disqualified from sitting in the described proceeding. Our decision is based on Canon 3C of the Alabama Canons of Judicial Ethics. That Canon provides in pertinent part: “(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:

(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter ...” It is the opinion of the Commission that under the stated circumstances the judge’s impartiality might reasonably be questioned due both to the judge’s having represented the estate and the judge’s law partner’s association with the FDIC in the liquidation matters while the judge was still associated with the law firm. Although, technically, neither the judge nor his law partner may have been attorneys in the “matter in controversy”, the matters in which they did serve as attorneys were so closely related as to cause disqualification. This disqualification is not one that can be remitted under Canon 3D. Yours very truly, JUDICIAL INQUIRY COMMISSION