Must a judge step aside when a bank party employs the judge’s cousin as a vice president?

Plain-English summary

The Commission addressed a cousin who was a junior vice president in charge of a branch. It applied Canon 3C(1)(d)(i) to a relative within the prohibited degree serving as an officer of a bank party. It also said disqualification extends to proceedings where that relative is likely to be a material witness because of direct involvement in the transaction. It described Canon 3D remission for these grounds.

The Commission answered six related questions in one letter dated May 1, 1989. Each number below refers to a separate numbered answer in that letter. The source text reproduced below contains the full letter. The opinion also advises disclosure of a bank customer or debtor relationship, and recusal on request to avoid an appearance of impropriety.

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 judge step aside when a bank party employs the judge’s cousin as a vice president?

A: Yes, when the cousin is within the prohibited degree and an officer of the bank party. The opinion also covers a cousin likely to be a material witness in a transaction at issue, and describes remission under Canon 3D.

Background and rules framework

The Commission cited earlier Alabama judicial ethics opinions in the shared letter, including Opinions 86-276, 86-249, 86-260 and 76-5. For this numbered answer, the relevant Canons cited in the letter are Canon 3C(1)(d)(i), Canon 3C(1)(d)(ii).

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C(1)(d)(i)
• Canon 3C(1)(d)(ii)

See also

• AL Judicial Ethics Op. 89-367: Judge’s Checking Account at Bank Party

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinions 89-366 through 89-371
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

89-366
89-367
89-368
89-369
89-370
89-371
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
May 1 , 1989
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 party is a bank in which (1) his cousin (we assume within the fourth degree of relationship) is a junior vice-president in charge of a branch or which involves transactions in which the cousin participated; (2) the judge maintains a checking account; (3) the judge’s wife maintains a checking account; (4) the judge’s wife has an unsecured loan; (5) the judge’s daughters maintain money market college funds or (6) the judge maintains a safe deposit box. Your first question has been addressed in prior opinions by the Commission. Advisory Opinion 86-276 addresses the issue of disqualification where a relative within the prohibited degree serves as a vice president of a bank which is a party to a proceeding. In that opinion, the Commission followed its earlier opinions and found that Canon 3C(l)(d)(i) specifically provides disqualification in this instance. That canon provides that a judge is disqualified if a relative within the prohibited degree: “Is named a party to the proceeding, or an officer, director, or trustee of a party.” This disqualification further extends to any proceedings in which the relative is likely to be a material witness, i.e., the relative was directly involved in the transaction on which the proceeding is based. [Canon 3C(l)(d)(ii).] Of course, this disqualification may be remitted by following the remittal procedure found in Canon 3D. 89-366 The second question has also been addressed in prior opinions of the Commission. In opinions 86-249 and 86-260, it was the opinion of the Commission that the judge’s ownership of a bank account creating a bank customer relationship with a certain bank, alone, does not disqualify the judge from sitting in all proceedings involving the bank as a party. However, under Canon 3C(l)(d)(ii), disqualification would occur if the judge’s bank account or bank/customer relationship could be substantially affected by the outcome of the proceeding. The provision requires disqualification where either the judge or relative within the fourth degree: “Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;” Again, even this disqualification may be remitted under Canon 3D. 89-367

89-366, 89-367, 89-368, 89-369, 89-370 and 89-371
Page 2
0ur opinion concerning the second question applies equally to the third. The bank customer relationship does not in itself cause disqualification unless the judge’s wife’s bank account could be substantially affected by the outcome of the proceeding. Remittal of disqualification may be had under the provisions of Canon 3D. 89-368 The fourth question involves the existence of a small unsecured loan made by the bank to the judge’s wife. The Commission has previously addressed this issue in situations where the loans were obtained by the judge rather than his spouse. See advisory opinions 86-276 and 76-5. In those opinions, the Commission advised that the mere existence of the debtor/creditor relationship does not cause disqualification under Canon 3C. However, if additional factors exist such as the granting of special favors or the creation of a personal bias either in favor or against the bank, disqualification would exist. Disqualification based on personal bias cannot be remitted. The Commission finds this reasoning equally applicable to the existence of an unsecured loan by a bank to a judge’s wife. The mere existence of the debtor/creditor relationship does not cause disqualification. Of course, if the loan could be substantially affected by the outcome of the proceeding under Canon 3C(l)(d)(iii), disqualification would occur. That disqualification may be remitted under Canon 3D. 89-369 It is the opinion of the Commission that the existence of a college money market fund owned by the judge’s daughter or a safe-deposit box owned by the judge would also not cause the judge’s disqualification in proceedings involving the bank unless, of course, these interests could be substantially affected by the outcome of the proceeding.
[Canon 3C(l)(d)(iii).] Again, that disqualification may be remitted. 89-370 and 89-371 We note further that, in the Commission’s earlier opinions cited above, the Commission advised that while disqualification is not technically required in the situations involving the mere existence of a bank/customer relationship or a debtor/creditor relationship, the judge should advise the parties of the relationship, and to avoid even the appearance of impropriety, recuse himself if requested to do so. Sincerely, JUDICIAL INQUIRY COMMISSION