Must a judge recuse from a civil case involving the lawyer defending a former secretary accused of taking the judge’s funds?
Apply this to your situation
This page answers the general question as of 1991. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A judge’s former secretary faced a criminal prosecution involving alleged forgeries of funds belonging to the judge and the judge’s wife. The judge retained Attorney A for personal and financial interests; Attorney B defended the former secretary. In an unrelated civil case before the judge, Attorney B represented one party and a member of Attorney A’s firm represented the other.
The Commission required recusal from the civil case under Canon 2C. It distinguished Advisory Opinion 78-53, which had said that retaining an attorney’s partner in a single matter alone did not disqualify the judge in an unrelated case. Here the defense lawyer also appeared in the judge’s civil case, and the criminal prosecution involved the judge’s property. The Commission found the appearance of impropriety substantial.
The opinion said this particular ground for disqualification would cease when the attorney-client relationship between the defense lawyer and former secretary ended.
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: Was the judge disqualified merely because a lawyer’s partner represented the judge?
A: No. The Commission distinguished its earlier Opinion 78-53 and relied on the additional facts involving the former secretary’s prosecution and counsel’s role in the pending case.
Q: When would this stated ground for recusal end?
A: The Commission said it would cease when the defense lawyer’s attorney-client relationship with the former secretary ended.
Background and rules framework
The opinion applies Canons 2C and 2A to the appearance of impropriety. It discusses Canon 3C and Advisory Opinion 78-53 when distinguishing a lawyer-partner relationship standing alone from the additional facts here.
Citations and references
Alabama Canons of Judicial Ethics:
- Canon 2C
- Canon 2A
- Canon 3C
Other authorities cited:
- Alabama Judicial Inquiry Commission Advisory Opinion 78-53, on representation by a lawyer whose partner represented the judge in a separate matter.
See also
Source
- Landing page: Alabama JIC advisory opinions
- Original PDF: Advisory Opinion 91-437
- Canon history: Alabama JIC, Canons of Judicial Ethics
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
91-437
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
December 16, 1991
This is in response to your request for an advisory opinion from the Alabama Judicial Inquiry Commission. Your question is whether you should recuse yourself in the following situation: Your former secretary has been charged in a criminal prosecution with forgeries of personal funds belonging to you and your wife. Because banks and credit card companies are involved, you, in your private capacity, have hired Attorney A to protect your personal and financial interests. Attorney B has been appointed to represent your secretary in the criminal matter. A civil action involving an unrelated domestic relations matter is pending before you as circuit judge. Attorney B represents one of the parties and has filed a motion to recuse. The attorney for the other party is a member of the same law firm as Attorney A. It is the opinion of the Commission that under the above facts your recusal from the pending civil case is required under Canon 2C. In Advisory Opinion 78-53, the Commission held that “the mere fact that a judge has retained an attorney’s law partner to represent the judge or a member of the judge’s family in a single case would not disqualify the judge, under Canon 3C, from sitting in a different case where the attorney represents one of the parties.” However, in this case there are additional considerations in that defense counsel for your former secretary is representing the other party to the civil action, and the criminal prosecution of your former secretary involves the alleged theft of property owned by you and your wife. Under these particular circumstances, the appearance of impropriety is substantial. Canon 2A of the Alabama Canons of Judicial Ethics provides: “A judge should avoid impropriety and the appearance of impropriety in all his activities. “A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” 91-437 Page 2 Of course, once the attorney-client relationship between the attorney and your former secretary is terminated, this particular ground of disqualification will cease. At such time, you will no longer be disqualified on this ground and may preside over a matter involving either that attorney or any member of his firm. The Commission thanks you for your inquiry. Respectfully,
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