Must a judge recuse when a special assistant attorney general in the brother’s firm advised the prosecution before indictment?

Plain-English summary

A special assistant attorney general who belonged to the judge’s brother’s firm had advised on technical legal issues in a grand jury investigation. The assistant had no expected role after indictment, and the judge’s brother had no involvement in the prosecution.

The Commission found no disqualification from the firm connection alone, citing earlier opinions that a lawyer-relative’s membership in counsel’s firm does not automatically require recusal.

Currency note

This opinion was issued in 1993, 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 the special assistant’s firm membership alone require recusal?

A: No. The Commission found no disqualification on those facts.

Q: Was the judge’s brother involved in prosecuting the defendant?

A: No. The opinion states that he was not involved.

Background and rules framework

The opinion applies earlier Commission guidance about a judge’s lawyer-relative and prosecution-firm ties; it cites no numbered Canon.

Citations and references

Other opinions cited:

• Alabama JIC Opinions 88-346 and 91-426, among others, are cited on a relative’s lack of participation and shared-firm affiliation.

See also

• AL Judicial Ethics Op. 93-475: Law Book Coauthor

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 93-473
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

93-473
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
February 26, 1993
This is in response to your request for an advisory opinion from the Judicial Inquiry Commission. Your question is whether you are disqualified from presiding over a criminal trial under the following circumstances: Your brother is a member of a law firm. Another member of that same firm is a special assistant attorney general who participated in a grand jury investigation of a defendant whose case you have been assigned. The assistant’s involvement was limited to advising the Attorney General and his staff in connection with technical legal issues. The assistant has no post-indictment involvement in the case and does not anticipate any future involvement. It is the opinion of this Commission that these facts do not furnish a ground for your disqualification. A judge is not disqualified from presiding over a criminal case merely because the judge’s brother is an assistant district attorney where the brother has not participated in the investigation or prosecution of the defendant. Advisory Opinion 88-

346. See also Advisory Opinions 87-303, 86-277, 83-171, 80-101, 80-90, 80-89
     (involving the judge’s son). “The mere fact that a lawyer who represents a party to a proceeding is a member of the same law firm in which the judge’s brother is a member does not in and of itself cause the judge’s disqualification.” Advisory Opinion 91-426. See also Advisory Opinions 88-388, 88-346, 84-214. Consequently, the mere fact that a special assistant attorney general who was involved in the investigation and prosecution prior to indictment of a defendant is a member of the same legal firm as the judge’s brother does not constitute a ground for disqualification where the judge’s brother has not been involved in any way with the prosecution of the defendant. This advisory opinion has been approved and adopted by the Judicial Inquiry Commission and is the opinion of this Commission.