May a full-time Alabama district judge mediate a circuit-court action without pay?

Plain-English summary

The request concerned a district judge mediating an action pending in circuit court by agreement of the parties and without charge. The Commission concluded that a full-time district judge could not serve as mediator in a case not before the judge. Consent and lack of compensation did not alter that conclusion.

Canon 5E bars judges from acting as mediators or arbitrators. The Commission reads it with Canons 5D and 5F as reflecting the primacy of judicial duties. It leaves retired and supernumerary judges to the Compliance provisions and earlier Opinion 90-392, which distinguishes full-time from other supernumerary service.

Currency note

This opinion was issued in 1997, 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: Would the parties’ consent and an unpaid role permit this mediation?

A: No. The Commission says neither changes the prohibition for a full-time district judge.

Background and rules framework

The Commission applies Canon 5D, Canon 5E, Canon 5F to the specific conduct in the request. Its conclusion follows the conditions described in the official letter.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 5D, Canon 5E, Canon 5F.

Other opinions cited:

• Alabama JIC Opinion 90-392, mediation or arbitration by a retired judge depending on full-time status.

See also

• AL Judicial Ethics Op. 23-955: Retired Judge ADR

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 97-650
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

97-650
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
May 9, 1997
The Judicial Inquiry Commission has considered your request for an advisory opinion concerning whether a district judge may mediate an action pending in Circuit Court pursuant to an agreement between the parties and without charge. The Commission is of the opinion that a full-time district judge is prohibited from serving as a mediator in an action not before him. This prohibition applies without regard to whether the parties agree to such service or whether such service would be without compensation. As you note, Canon 5E states, “A judge should not act as an arbitrator or mediator.” Canon 5D precludes a judge from acting as a fiduciary where such service would interfere with the proper performance of his judicial duties, and Canon 5F prohibits a judge from serving as a lawyer. When viewed together with Canon 5E, they illustrate that a judge’s primary duty is as a judge. In Advisory Opinion 90-392, a copy of which is enclosed, the Commission concluded that whether a retired circuit judge was prohibited from serving as a private mediator or arbitrator for compensation depended on whether the retired judge was serving as a full-time active circuit judge, as some supernumerary judges do. If serving full-time, the retired judge was prohibited from serving as a private mediator or arbitrator. If a judge merely hears cases from time to time, he should not be considered to be full-time. The district court judgeships in Montgomery County are full-time positions. The district judge should devote himself or herself to the judicial position on a full-time basis and should not serve as a mediator or arbitrator. If the position were not full-time, the analysis in Advisory Opinion 90-392 would apply. This opinion should not be read to affect the service of retired or supernumerary judges as mediators. Such service is governed by the Compliance portions of the Canons and Advisory Opinion 90-392. Very Truly Yours, JUDICIAL INQUIRY COMMISSION