May a probate judge appoint an attorney son or daughter as guardian ad litem in a judicial probate matter?
Apply this to your situation
This page answers the general question as of 1985. 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 opinion asks whether a probate judge may appoint the judge’s attorney son or daughter as guardian ad litem in a pending judicial matter.
The Commission said the appointment was prohibited. It explained that the judicial Canons apply when a probate judge performs judicial duties, including guardian appointments, and found no distinction from its earlier prohibition on appointing related attorneys in indigent criminal cases. It said repeal of a statutory fine for certain appointments did not change the Canons.
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: Does the rule apply when the probate judge appoints a guardian ad litem?
A: Yes. The Commission described that appointment as a judicial duty to which the Canons apply.
Q: Did repeal of the former statutory fine permit the appointment?
A: No. The Commission said the repeal of Section 12-13-52 did not affect the Canons.
Background and rules framework
The opinion applies Canon 3 and Canon 3C of the Alabama Canons of Judicial Ethics to the judicial appointment. It cites Section 12-13-52 and Act No. 84-791 only to explain that repeal of the former statute did not alter the Canon analysis.
Citations and references
Alabama Canons of Judicial Ethics:
- Canon 3
- Canon 3C
Statutes:
- Section 12-13-52, Code of Alabama, 1975 (repealed by Act No. 84-791)
Other opinions cited:
- Alabama JIC Opinions 80-91 and 82-138, appointment of related attorneys in indigent cases.
See also
Source
- Landing page: Alabama JIC advisory opinions
- Original PDF: Advisory Opinion 85-234
- Canon history: Alabama JIC, Canons of Judicial Ethics
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
85-234
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
June 5, 1985
The Judicial Inquiry Commission has formally considered the question of whether, under the Alabama Canons of Judicial Ethics, a probate judge may appoint his or her attorney son or daughter to serve as a guardian ad litem in matters pending before the probate court in the court’s judicial capacity. It is the opinion of the Commission that a probate judge is prohibited from appointing his or her attorney son or daughter as a guardian ad litem in matters pending before the probate court in its judicial capacity. Under the compliance provisions of the Alabama Canons of Judicial Ethics, probate judges must comply with applicable Canons when performing judicial duties. While a probate judge is not charged with complying with the Canons in the performance of the administrative and executive duties of the probate office, he is charged with complying when he exercises duties which pertain to his judicial office, i.e., appointment of guardians ad litem. Canon 3 of the Alabama Canons of Judicial Ethics is most pertinent in this instance. Specifically, Canon 3C would appear to prohibit a judge’s appointment of certain rela- tives as guardians ad litem. Canon 3C governs disqualification of judges; the Commission has previously held that under this Canon a judge is disqualified from sitting in any proceeding in which the judge is related within the fourth degree by blood or marriage to an attorney for any litigant. This Commission has also found that Canon 3C applies to the appointment of attorneys in indigent criminal cases prohibiting such appointments where the attorney is related to the judge within the fourth degree (Opinions 80-91 and 82-138). No valid distinction can be drawn between the appointment of attorneys in indigent criminal cases and court-appointed guardians. The Commission is cognizant of the fact that Section 12-13-52, Code of Alabama, 1975 has been repealed by Act No. 84-791. That provision set a fine to be imposed upon probate judges, who appointed certain persons, including relatives, as guardians ad litem. The repeal of that Code section has no effect upon the provisions of the Alabama Canons of Judicial Ethics. Yours very truly, JUDICIAL INQUIRY COMMISSION
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