Is a judge disqualified when a prosecutor belongs to the law firm in which the judge’s brother is a partner?
Apply this to your situation
This page answers the general question as of 1994. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
The question concerned a supernumerary district attorney who belonged to the law firm in which the judge’s brother was a partner. The Commission concluded that this relationship alone did not disqualify the judge.
Under Canon 3C, the judge must assess each case for circumstances that might reasonably call impartiality into question and for a known interest of the brother that could be substantially affected by the criminal proceeding. Either condition requires disqualification. The opinion also invokes Canon 1 and discusses earlier Commission opinions on similar family and firm relationships.
Currency note
This opinion was issued in 1994, 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: Does the brother’s partnership automatically require recusal?
A: No. The opinion says the partnership alone is not a disqualifying factor.
Q: When must the judge recuse?
A: The judge must recuse if impartiality might reasonably be questioned or a known interest of the brother could be substantially affected by the proceeding.
Background and rules framework
The opinion applies Canon 3C to disqualification and invokes Canon 1 in the judge’s case-specific assessment.
Citations and references
Alabama Canons of Judicial Ethics:
- Canon 3C, Canon 1.
Other opinions cited:
- Alabama JIC Opinions 88-338, 81-101, and 93-470, addressing related family and law-firm relationships.
See also
Source
- Landing page: Alabama JIC advisory opinions
- Original PDF: Advisory Opinion 94-534
- Canon history: Alabama JIC, Canons of Judicial Ethics
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
94-534
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
December 9, 1994
This is in response to your request for an advisory opinion from the Judicial Inquiry Commission. Your question is whether you are disqualified to presiding over a case prosecuted by a supernumerary district attorney who is a member of the law firm in which your brother is a partner. It is the opinion of this Commission that the mere fact that the prosecutor, a supernumerary district attorney, is a member of the same law firm as your brother does not require your disqualification from any case in which that prosecutor appears. See Advisory Opinion 88-338 (A judge is not automatically disqualified from sitting in a proceeding in which a party is represented by a member of a law firm in which the judge’s uncle holds the position of senior partner.) In Advisory opinion 81-101, this Commission held that where the judge’s brother is a member of a law firm, the senior member of which is an appointed part-time assistant district attorney, the judge is disqualified only where the senior member of the judge’s brother’s law firm actually participated as assistant district attorney in the trial or the preparation of the case and it is known to the judge that the senior member so participated. That opinion was modified and overruled by 88-338. The situation is governed by Canon 3C, Alabama Canons of Judicial Ethics. Here, the mere existence of your brother’s partnership interest is not a disqualifying factor. However, disqualification would occur if other circumstances exist under which the judge’s “impartiality might reasonably be questioned” or if the judge knows that his brother has an interest in the law firm that could be substantially affected by the outcome of the criminal proceedings. A judge must examine the facts in each case where the supernumerary is prosecuting a defendant and must make those determinations. If either factor exists, the judge must disqualify himself. These provisions place a heavy burden on the judge in each case. In considering these issues, the judge must be ever cognizant of the provisions of Canon 1 setting out the object of the Canons. For example, see Advisory Opinion 93-470 (The appearances of impropriety are such that a judge should recuse himself in a capital case where the judge’s brother is a partner in the firm, where most of the partners are assistant district attorneys, and where one of the partners is the attorney for the victims’ estates, even though none of the assistant district attorneys were involved in the prosecution of the defendant and no civil action against the defendant is contemplated.). This advisory opinion has been approved by and is the opinion of the entire Commission.
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