What did Alabama Opinion 92-451 originally say about a divorce lawyer who also handled the judge’s spouse’s DHR case?

Plain-English summary

The judge’s spouse pursued support relief through the Department of Human Resources. A DHR lawyer assigned to that matter also appeared as co-counsel in an unrelated divorce case before the judge. The original opinion concluded that the judge was disqualified from hearing the divorce case.

The Commission relied on Canon 3C(1)’s rule for circumstances reasonably questioning impartiality and Canon 2’s appearance principle. It said the concern arose even though a cited state bar opinion identified DHR, rather than the spouse, as the assigned lawyer’s client. It also said the parties could not waive this ground under Canon 3D.

The official PDF marks Opinion 92-451 withdrawn by Opinion 92-454. After learning that the DHR lawyer had ceased the separate representation of the spouse, the Commission held in 92-454 that the disqualification basis had ended and the judge could finish the divorce case on those added facts.

Currency note

The official PDF marks this opinion “Withdrawn by 92-454.” Opinion 92-454 withdrew the original answer after considering additional facts. This opinion was issued in 1992, 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: What was the original answer?

A: The Commission originally said the judge was disqualified while the appearing lawyer also handled the spouse’s pending support matter.

Q: Could the parties waive that concern under the original analysis?

A: No. The opinion said Canon 3D did not allow waiver of the reasonable-impartiality ground.

Q: Is Opinion 92-451 still the Commission’s answer?

A: No. Its official PDF marks it withdrawn by Opinion 92-454, which reached a different result after the lawyer withdrew from the spouse’s matter.

Background and rules framework

The original opinion applied Canon 3C(1) and Canon 2 and discussed Canon 3D’s limited waiver procedure. Opinion 92-454 later withdrew it on expanded facts.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 2
• Canon 3C(1)
• Canon 3D

Other opinions cited:

• Alabama State Bar Ethics Opinion RO-87-57: DHR as the assigned attorney’s client.
• Alabama JIC Opinions 92-433, 88-337, 88-336, 87-313, 82-168, 80-78, 80-74, and 78-53: attorney representing the judge in another pending matter.
• Alabama JIC Opinion 92-454: later withdrawal and revised answer.

See also

• AL Judicial Ethics Op. 92-454: Spouse’s DHR Lawyer After Withdrawal

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 92-451
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

92-451
[Withdrawn by 92-454]
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
August 21, 1992
This is in response to your request f or an advisory opinion from the Judicial Inquiry Commission. Your question is whether you are disqualified under the following circumstances. In 1987, your wife engaged the services of the county Department of Human Resources in seeking a modification of child support payments and the collection of arrearage of child support from her former husband. Attorney A represents DHR in child support cases and your wife’s case was assigned to him. Attorney A was not personally retained by your wife. According to the opinion of the Alabama State Bar Association, when an attorney prosecutes a child support case pursuant to an assignment of child support rights to the Department of Human Resources, as was done in your wife’s case, the attorney’s client is DHR rather than the individual spouse. See Alabama State Bar Ethics Opinion RO-87-57. In 1990, an unrelated divorce action was filed in which Attorney A was associated as co-counsel. In 1991, your wife again sought the collection of arrearage child support payments and contribution toward post-minority educational expenses. Under the same arrangement that existed in 1987, Attorney A was assigned the case and filed a civil action against your wife’s former husband. It is the finding of this Commission that you are disqualified from hearing the divorce action in which Attorney A has been associated as co-counsel for one of the parties under the above described facts. The circumstances presented do not fit the more specific factual settings described in the subsections following Canon 3C(l), Alabama Canons of Judicial Ethics. However, the “catch-all” provision of Canon 3C(l) provides that “[a] judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned.” (Emphasis added). Canon 2 provides that “[a] judge should avoid impropriety and the appearance of impropriety in all his activities.” In the factual situation described, public confidence in the integrity of the judicial process demands that the judge disqualify himself from the divorce proceeding. 92-451 Page 2 The provisions of Canon 3C(l) prohibit a judge from sitting in any proceeding in which an attorney for one of the parties represents the judge in an unrelated pending matter. Advisory Opinions 92-433, 88-337, 88-336, 87-313, 82-168, 80-78, 80-74, 78-53. This prohibition exists when the attorney represents the judge’s spouse in an unrelated pending matter. See Advisory Opinion 91-414 (a judge is disqualified from sitting in a child support proceeding in which his wife, as an assistant district attorney, previously represented the State of Alabama). Furthermore, attorneys are not governed by the Canons of Judicial Ethics and an attorney has no ethical obligation to avoid the appearance of impropriety. See Alabama Rules of Professional Conduct. A judge’s disqualification under Canon 3C(l) may not be waived by the parties. Under Canon 3D, only disqualifications based upon financial interest (Canon 3C(l)(c)) or family relationships (Canon 3C(a)(d)) may be waived. This opinion has been approved by the Judicial Inquiry Commission. Please contact me if you have any questions regarding this or any other matter.