May a trial judge give the State Bar Grievance Committee facts about defense counsel’s performance while the conviction is on appeal?

Plain-English summary

After a criminal trial, defense counsel asked the presiding judge to send the State Bar Grievance Committee a letter about counsel’s trial performance. The case was on appeal with new counsel, and ineffective assistance might become an appellate issue. The Grievance Committee had not contacted the judge.

The Commission found no Canon bar to submitting an assessment of counsel’s performance. It said the judge could provide facts and circumstances known from the trial, as a material witness could.

Currency note

This opinion was issued in 1990, 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: Could the judge submit a letter while the appeal was pending?

A: Yes. The Commission said the Canons did not prohibit an assessment and facts known to the judge about trial counsel’s performance.

Q: Was the Grievance Committee the party requesting the letter?

A: No. The opinion says trial counsel requested it and the Committee had not contacted the judge.

Background and rules framework

The Commission reviewed the Alabama Canons of Judicial Ethics but cited no numbered Canon in this answer.

See also

• AL Judicial Ethics Op. 91-419: Commission Declines Council-Tenure Question

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 90-390
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

90-390
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
January 31, 1990
The Judicial Inquiry Commission has considered your request for an opinion concerning whether under the Alabama Canons of Judicial Ethics a judge, who presided at a criminal trial which is now pending on appeal, may submit a letter to the State Bar Grievance Committee assessing the character and quality of defense counsel’s representation of defendant as against a grievance complaint for ineffective assistance of counsel. Different counsel has been appointed to represent the defendant on appeal and therefore ineffective assistance may be a claim which is raised for appellate review. The judge has been requested by trial counsel to submit the letter. He has not been contacted by the Bar Grievance Committee. It is the opinion of the Commission that under the Alabama Canons of Judicial Ethics a judge may submit an assessment of an attorney’s performance at a specific trial, pending an appeal, to the State Bar Grievance Committee. The judge may present evidence to the Committee concerning facts known to the judge about the attorney’s performance; the judge like any other material witness may testify to facts and circumstances within his knowledge. We have examined the Canons of Judicial Ethics and find no prohibition against a judge so testifying. Sincerely, JUDICIAL INQUIRY COMMISSION