Did an appearing lawyer from the judge’s first cousin’s firm, or a first-cousin expert witness of the judge’s spouse, require recusal?
Apply this to your situation
This page answers the general question as of 1986. 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 1986 letter considered a case handled by the judge’s first cousin’s law firm and a separate case where the judge’s spouse’s first cousin would testify as an expert.
The Commission originally required recusal in both cases and said Canon 3D remittal was available. It treated law-firm affiliation as sufficient for the first case and material-witness kinship as the ground for the second. Opinion 88-338 later listed 86-258 among opinions overruled or modified to the extent of conflict with its case-specific firm-affiliation analysis.
Currency note
The official PDF is marked “[Overruled or Modified by 88-338].” Opinion 88-338 names 86-258 among opinions modified or overruled to the extent of conflict with its firm-affiliation analysis.
This opinion was issued in 1986, 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: Did the original answer allow remittal?
A: Yes. It said Canon 3D remittal was available for both grounds.
Q: Which part was affected by Opinion 88-338?
A: Its automatic disqualification based on the lawyer-relative’s law-firm affiliation was modified to the extent of conflict.
Background and rules framework
The letter applies Canon 3C(1)(d)(ii) and (iii) and Canon 3D. The later 88-338 opinion changes the treatment of firm affiliation alone.
Citations and references
Alabama Canons of Judicial Ethics:
- Canon 3C(1)
- Canon 3C(1)(d)(ii)
- Canon 3C(1)(d)(iii)
- Canon 3D
Other opinions cited:
- Alabama JIC Opinions 83-169, 80-69, and 80-68, earlier relative-counsel advice.
- Alabama JIC Opinion 88-338, later modification.
See also
Source
- Landing page: Alabama JIC advisory opinions
- Original PDF: Advisory Opinion 86-258
- Later modifying opinion: Alabama JIC 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.
86-258
[Overruled or Modified by 88-338]
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
March 3, 1986
The Judicial Inquiry Commission has considered your request for an opinion concerning whether, under the Alabama Canons of Judicial Ethics, a Judge is disqualified from sitting in a proceeding in which one of the parties is represented by the judge’s first cousin’s law firm or in which an expert witness is the first cousin of the judge’s spouse. If disqualification is required, you ask whether it may be remitted. It is the opinion of the Commission that disqualification is required in each of the instances described. This disqualification may be remitted under the provisions of Canon 3D. This opinion is based on Canon 3C(l) and 3D of the Alabama Canons of Judicial Ethics and on previous opinions of the Commission. Canon 3C(l) provides in pertinent part as follows: “(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:
(d) He or his spouse, or a person within the fourth degree of relationship to either of them, or the spouse of such person:
(ii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iii) Is to the judge’s knowledge likely to be a material witness in the proceeding;” We have stated in numerous previous opinions that under these provisions a judge is disqualified from sitting in a proceeding where one of the parties is represented by an attorney related to the judge within the prohibited degree. The same disqualification applies to all members of the attorney’s law firm. See, e.g., Opinions No. 83-169; 80- 69; and 80-68. In each instance we have further stated that this disqualification may be remitted under Canon 3D. 86-258 Page 2 In a proceeding in which the first cousin of the judge’s spouse is to appear as an expert witness, the judge is disqualified under the specific provisions of Canon 3C(l)(d)(iii). Disqualification under Canon 3C(l)(d) may be remitted under Canon 3D. Sincerely, JUDICIAL INQUIRY COMMISSION
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