May a full-time municipal judge research and draft felony appeal briefs for another lawyer without client contact?

Plain-English summary

A full-time municipal judge proposed paid research and drafting of felony appellate briefs for another attorney, without signing briefs or contacting clients. The Commission noted Canon 5F’s bar on practicing law and discussed preparatory paralegal work, but concluded that this proposed arrangement was impermissible under other Canons even if not specifically barred by Canon 5F.

The Commission cited the appearance of impropriety and concern that the hiring lawyer would seem specially positioned to influence the judge. It also said a business relationship with an attorney appearing before the judge would require recusal in that attorney’s cases, which Canon 3D would not allow the parties to remit.

The opinion quotes Canon 2 on avoiding impropriety, Canon 2A on public confidence, Canon 2C on judicial prestige and influence, Canon 3C(1) on disqualification, and Canon 5 on avoiding conflicts with judicial duties.

Currency note

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: Did calling the job paralegal work make it permissible?

A: No. The Commission said the proposed paid research and preparation of felony appellate briefs was impermissible under the cited Canons.

Q: Would the hiring lawyer’s appearance in the judge’s court affect recusal?

A: Yes. The Commission said the business relationship would require recusal in matters where the lawyer appeared or had an interest, without remission under Canon 3D.

Q: What influence concern did the Commission identify?

A: The hiring arrangement would convey an impression that the attorney occupied a special position to influence the judge.

Background and rules framework

The opinion distinguishes the practice-of-law bar in Canon 5F from its holding under Canons 2, 2A, 2C, 3C(1), and 5. It also cites Canon 3D on remission of disqualification and Rule 5.5’s comment on supervised paraprofessional work.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 2
• Canon 2A
• Canon 2C
• Canon 3C(1)
• Canon 3D
• Canon 5
• Canon 5F

Statutes and other authorities:

• Ala. Code 1975, §§ 34-3-11 and 34-3-14; Ala. Const. art. VI, § 162: practice-of-law provisions cited.
• Comment to Rule 5.5, Alabama Rules of Professional Conduct: supervised paraprofessional work.

Cases:

• Matter of Easler, 275 S.C. 400, 272 S.E.2d 32 (1980): preparatory paralegal activities.

See also

• AL Judicial Ethics Op. 92-464: Engineering and Surveying Seminars

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 92-459
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

92-459
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
November 9 ,1992
This is in response to your request for an advisory opinion from the Judicial Inquiry Commission. A full-time municipal judge, or any other full-time judge, is prohibited from practicing law under the provision of Canon 5F, Alabama Canons of Judicial Ethics. See also Ala. Code 1975, § 34-3-11, § 34-3-14, Ala. Constitution of 1901, Art. VI, § 162 relating to judges of “courts of record”. Your question is whether the research and writing of appellate briefs for another attorney in felony cases constitutes the unauthorized practice of law. You state that you would not be signing the briefs, would have no contact with the client, and would be assuming “a paralegal type duty.” The Commission assumes that you will be financially compensated for your work. “The activities of a paralegal do not constitute the practice of law as long as they are limited to work of a preparatory nature, such as legal research, investigation or the composition of legal documents which enable the licensed attorney- employer to carry a given matter to a conclusion through his own examination, approval or additional effort.” Matter of Easler, 275 S.C. 400, 272 S.E.2d 32 (1980). The Comment to Rule 5.5, Alabama Rules of Professional Conduct states: “[A] lawyer [is not prohibited] from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work.” Although not specifically prohibited by the provisions of Canon 5F, it is the finding of this Commission that under the provisions of Canons 2, 2A, 2C, 3C(l), and 5, a full-time municipal judge may not research and prepare appellate briefs in criminal felony cases for another attorney for the following reasons. First, Canon 2 provides that “[a] judge should avoid ... the appearance of impropriety in all his activities.” Canon 2A provides that “[a] judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2C states that a judge “should not lend the prestige of his office to advance the private interests of others.” “Any piece of legal or quasi-legal work is potentially the subject of litigation, thereby subjecting the judge’s efforts to review, perhaps by her own court. Moreover, were judges to render even non-litigative services, the appearance would inevitably be created that their assistance was sought in order to exploit the judicial position. 92-459 Page 2 Consequently, an abundance of caution is justified in order to maintain public confidence in the judiciary.” J. Shaman, S. Lubet, James Alfini, Judicial Conduct And Ethics §7.22, at 193 (1990). Second, under the provisions of Canon 3C(l), a judge must disqualify himself or herself when he or she has a business relationship with an attorney appearing before the court. Such a disqualification may not be remitted under Canon 3D. Therefore, you would have to recuse yourself in any case in your court in which your “attorney-employer” appears of counsel or in which he has an interest. Canon 5 provides that “[a] judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties.” Third, and perhaps most significant, Canon 2C provides that a judge “should not convey or permit others to convey the impression that they are in a special position to influence him.” Considering the nature of the employer-employee and judge-lawyer relationships, the very fact that an attorney has hired a judge to act as his law clerk would certainly convey the impression that that attorney was in a special position to influence the judge. “A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must, therefore, accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” Commentary to Canon 2, Alabama Canons of Judicial Ethics. This opinion has been approved by the Judicial Inquiry Commission. Please feel free to contact me if you have any questions regarding this or any other matter. Respectfully,