Could a judge sign an already drafted judgment after an appearing lawyer filed a tenant’s bankruptcy naming the judge’s partnership as creditor?

Plain-English summary

A judge belonged to a family partnership renting commercial property. After a trial, one appearing lawyer filed a bankruptcy petition for a tenant naming the partnership as creditor. The judge believed a judgment draft had been prepared before the petition, but had not signed it.

The Commission said the petition’s filing and pendency alone did not disqualify the judge on those facts. The judge could sign the final judgment if it remained substantially unchanged from the preliminary draft prepared before the filing or before the judge knew of it.

The Commission required the judge to recuse from subsequent post-trial proceedings. It distinguished a finished decision from later proceedings in which an adversarial relationship with appearing counsel could matter.

Currency note

This opinion was issued in 1991, 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 sign the drafted judgment?

A: Yes, if it remained substantially unchanged from the preliminary draft prepared before the filing or the judge’s knowledge of it.

Q: Could the judge hear later post-trial matters?

A: No. The opinion said the judge should recuse from subsequent post-trial proceedings.

Background and rules framework

The opinion applies Canon 3C(1)’s reasonable-question standard. It cites Alabama JIC Advisory Opinions 90-403, 88-326, 86-276, 83-176, 77-29, and 88-337 in distinguishing litigation involving a judge from separate counsel-related conflicts.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C(1)

Other authorities cited:

• Alabama JIC Advisory Opinions 90-403, 88-326, 86-276, 83-176, and 77-29, on a litigant filing against a judge.
• Alabama JIC Advisory Opinion 88-337, lawyer representing a client in a separate case against a judge.

See also

• AL Judicial Ethics Op. 91-437: Former Secretary’s Prosecution

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 91-413
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

91-413
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
February 26, 1991
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 based on certain circumstances. It appears from the facts presented that the judge is a member of a family partnership engaged in the rental of commercial property. A few days after the judge presided over the trial of a case, one of the lawyers appearing before him filed a petition in bankruptcy on behalf of a tenant and named the partnership as a creditor. The judge believes that a draft of the judgment in the case he tried was probably prepared before the bankruptcy petition was filed, however, the judgment has not been signed by the court. It is the opinion of the Commission that the mere existence of the filing and pendency of the bankruptcy petition does not cause the judge’s disqualification. Disqualification is governed primarily by Canon 3C(l) of the Alabama Canons of Judicial Ethics. That Canon provides in pertinent part as follows: A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned. In numerous previous opinions the Commission, considering these provisions, has advised that a litigant may not cause the judge’s disqualification in pending litigation merely by filing suit against the judge in other proceedings. See Advisory Opinions 90- 403, 88-326, 86-276, 83-176 and 77-29. We note that the result has been different where a lawyer in a proceeding represents a client in a separate matter filed against a judge. See Advisory opinion 88-337. However, in the present circumstances, we do not believe that the mere filing of a bankruptcy petition naming a partnership involving the judge as a creditor causes the judge’s disqualification where the preliminary draft of the final judgment was drafted before the filing or before the judge knew of the petition. The judge may sign the final judgment if it remains substantially unchanged from the preliminary draft. However, the judge should disqualify himself in any subsequent post- trial proceeding. This opinion is based not only on the advisory opinions previously cited, but also on the standard for disqualification set out in In re Sheffield, 465 So.2d 315, (Ala. 1984). There, our Supreme Court held that disqualification occurs where a reasonably prudent man, knowing all of the facts known to the judge, would question the judge’s impartiality. We do not believe the judge’s impartiality can be reasonably questioned due to facts and circumstances arising after a final decision has been reached, except 91-413 Page 2 for fine tuning by the judge. However, if a real adversarial relationship arises between the judge and an attorney to the proceeding after final judgment has been reached, then the judge should disqualify himself from all subsequent post trial proceedings. Sincerely, JUDICIAL INQUIRY COMMISSION