Must a former Governor’s legal adviser recuse from a pending case involving a staff or cabinet member who is a party in an official role?

Plain-English summary

The third circumstance involved a member of the Governor’s staff or cabinet as a party because of an official position. The case was pending while the judge served as the Governor’s Legal Advisor, although the judge had no knowledge and provided no advice. The Commission required disqualification based on that prior service.

The Commission answered seven numbered circumstances in one letter dated April 4, 1989. The source text reproduced below contains the full letter; this page focuses on the numbered circumstance identified above.

Currency note

This opinion was issued in 1989, 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: Must a former Governor’s legal adviser recuse from a pending case involving a staff or cabinet member who is a party in an official role?

A: Yes. The Commission required recusal when the case was pending during the judge’s service as Legal Advisor, even without the judge’s knowledge or advice about it.

Background and rules framework

The shared letter applies Canon 3C’s impartiality standard, including its discussion of bias, prior service as a lawyer, and government legal office associations. For this numbered circumstance, the relevant provisions are Canon 3C, Canon 3C(1)(b).

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C
• Canon 3C(1)(b)

See also

• AL Judicial Ethics Op. 89-366: Judge’s Cousin as Bank Officer

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinions 89-359 through 89-365
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

89-359
89-360
89-361
89-362
89-363
89-364
89-365
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
April 4, 1989
The Judicial Inquiry Commission has considered your request for a n opinion concerning whether the Canons of Judicial Ethics require a Judge’s disqualification in certain specified proceedings. Under the facts presented, the Judge has recently been appointed to the bench by the Governor. At the time of this appointment, the Judge was serving as the Governor’s Legal Advisor. Prior to serving in that capacity, the Judge served as a criminal prosecutor. The Governor's new Legal Advisor and/or Deputy Legal Advisor worked with the Judge during the Judge’s term as Legal Advisor to the Governor. Based on these facts, seven circumstances are presented in which the Judge is concerned about disqualification. These circumstances are as follows:

1. Cases in which the Governor is a party in his official capacity and which
   began or existed while the Judge served as Legal Advisor to the Governor but did not have any knowledge or provide any legal advice; 89-359
2. The same as in number 1 but the cases were filed after the former Legal
   Advisor became a Judge; 89-360
   3 . Cases in which members of the Governor’s staff or cabinet are a party due to their official positions and which cases were pending during the Judge’s term as Legal Advisor but as to which the Judge had no knowledge and gave no legal advice; 89-361
3. The same as number 3 except that the cases were filed after the former
   Legal Advisor became a Judge; 89-362
4. Cases in which the parties are represented by an attorney formerly
   prosecuted by the Judge; 89-363
5. Cases involving parties against whom the Judge formerly acted as
   prosecuting attorney but not involving the offenses or fact situations formerly prosecuted or considered for prosecution by the Judge; 89-364 89-359, 89-360, 89-361, 89-362, 89-363, 89-364, and 89-365 Page 2
6. Cases involving the current Legal Advisor and/or Deputy Legal Advisory
   as attorneys and who worked with the Judge during his service as prosecutor and as Legal Advisor to the Governor. 89-365 Each of the above instances is governed primarily by Canon 3C of the Alabama Canons of Judicial Ethics. In pertinent part, that Canon provides: (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: (a) He has a personal bias or prejudice concerning a party, or personal knowledge or disputed evidentiary facts concerning the proceeding; (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, or the judge or such lawyer has been a material witness concerning it. COMMENTARY A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subsection; a judge formerly employed by a governmental agency, however, should disqualify himself in a proceeding if his impartiality might reasonably be questioned because of such association. In the Judge’s opinion request, five of the Judge’s inquiries concern disqualification based on the Judge’s prior association with the Governor as his Legal Advisor. In those instances, it is the opinion of the Commission that the Judge’s previous employment as the Governor’s Legal Advisor causes the Judge’s disqualification only in those proceedings pending during the time of the Judge’s service as Legal Advisor, whether or not the judge actually participated by advising or representing the Governor. The Judge is not disqualified from sitting in proceedings which arise after he assumed the bench so long as he has no personal bias or prejudice concerning the parties and he has no knowledge of the facts or considerations made in the Governor’s office concerning the facts or legal issues considered as to the matter. Thus, the Judge is disqualified in cases arising under circumstances 1 and 3 simply due to his previous service as Legal Advisor. No disqualification exists on this ground as to circumstances 2 and 4. Circumstance number 7 is directly addressed by the above quoted COMMENTARY to Canon 3C. The mere fact of the Judge’s employment as Legal Advisor at the same time that the current Legal Advisor or Deputy Legal Advisor were part of the Governor’s Legal Advisor’s staff, does not cause the Judge’s disqualification in proceedings in which the current Legal Advisor’s staff represents the Governor or his office. 89-359, 89-360, 89-361, 89-362, 89-363, 89-364, and 89-365 Page 3 As to your circumstance number 6, the mere fact that the Judge has previously prosecuted a party in a particular proceeding does not disqualify the Judge from sitting in the current proceeding. Disqualification would exist, however, if the current proceeding in any way involves the matters or facts previously prosecuted. The last fact situation to be considered is set out in circumstance number 5. It is the opinion of the Commission that the judge is not disqualified from sitting in a proceeding by the mere fact that he previously prosecuted to mistrial the attorney representing one of the parties. However, in both circumstances 5 and 6 the Judge should carefully examine the facts and circumstances known to him by virtue of the previous prosecution. If upon such examination he finds facts known to him which might or might not have been made public and which would cause his impartiality to be questioned by a reasonable man, then he should disqualify himself. In summary, under Canon 3C of the Alabama Canons of Judicial Ethics, the Judge is disqualified in circumstance 1 and 3 by the mere fact of his previous employment as the Governor’s Legal Advisor; no disqualification is caused by the mere fact of such employment in circumstances 2, 4 and 7; and the mere fact that a Judge has previously prosecuted a party or a party’s attorney does not require the Judge’s disqualification in a subsequent proceeding not involving the offense or facts upon which the previous prosecution was based as set out in circumstances number 5 and 6. Sincerely, JUDICIAL INQUIRY COMMISSION