Did a judge's serious accusations against opposing attorneys require recusal from their firms' cases?

Plain-English summary

After a contested trial, a judge accused several lawyers of intentionally false charges, perjury, altered transcript pressure, and counterfeit evidence. The judge began statutory removal proceedings, then decided to refer findings to the State Bar. Two firms employing the lawyers sought recusal in all their cases before the judge.

The Commission noted that hostility to a lawyer does not ordinarily disqualify a judge from every client matter and blanket recusal is unusual. Given the gravity of this judge's allegations and surrounding circumstances, however, a reasonable person could question impartiality in cases involving any lawyer from the two firms.

It required recusal from all then-pending cases with either firm and from cases newly filed with a firm member as initial counsel while disciplinary proceedings arising from the dispute continued. The opinion tied the broad scope to these particular facts.

Currency note

This opinion was issued in 1999, 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: Was a complaint against a lawyer enough by itself to require blanket recusal?

A: No. The Commission distinguished routine reporting or complaints from the serious, extended conflict presented here.

Q: Did the ruling extend beyond the attorneys directly accused?

A: Yes. It covered cases involving any member of either requesting firm under the specified timing conditions.

Q: How long did the new-case rule apply?

A: The opinion applied it to cases filed while related disciplinary proceedings continued, if a firm member appeared as initial counsel.

Background and rules framework

Alabama Canon 3C(1) required recusal when impartiality might reasonably be questioned, while Canon 3C(1)(a) addressed personal bias concerning a party. The Commission distinguished ordinary lawyer hostility from the extraordinary accusations and case history before it.

Citations and references

The opinion cites Alabama Canons 3C(1) and 3C(1)(a), Ala. Code §§ 34-3-86 et seq., and Advisory Opinions 85-243, 86-281, 86-284, 89-363, and 97-656.

See also

• AL Judicial Ethics Op. 97-656: Bar Complaint Against Litigant

• AL Judicial Ethics Op. 85-243: Prior Complaint Against Attorney

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 99-728

• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: APRIL 30, 1999 ADVISORY OPINION 99-728
DISQUALIFICATION DUE TO BIAS OR
PREJUDICE TOWARD ATTORNEY
ISSUE
Is a judge disqualified to hear all cases
involving two particular law firms? Answer:
Yes, under the particular facts in this case.
FACTS
In post trial proceedings in a case that had
been involved in protracted litigation, the
defendants alleged that the judge had been
involved in improper jury contact. The judge
responded that the allegations were false and
he confronted the attorneys. The judge later
asserted that counsel intentionally made false
charges against him, both in the original
accusation and subsequent thereto, and that
they committed perjury. The judge also
implicated one of the attorneys in an illegal
taking of the judge’s trial notes for the case,
and he charged all of the attorneys involved
with ex parte coercion of the court reporter to
alter the transcript of the trial. The judge
additionally accused counsel of offering a
counterfeit document at trial as an authentic
original, and of having assisted in the
preparation of a counterfeit document. The
judge initially instituted statutory removal
proceedings against the attorneys (see Ala.
Code §34-3-86, et seq. (1975)). However, he
has decided to turn his findings over to the
State Bar and to discontinue the statutory
removal proceedings. Two law firms of
which some of the attorneys involved are
members have asked the judge to recuse
himself in all of their cases before the judge.
DISCUSSION
“[H]ostility toward a party’s
attorneymust be both personal
and extreme before it is
disqualifying. This is
particularly so when the
judge’s behavior toward an
attorney does not grow out of
the particular case the judge is
hearing at that time. Antipathy
towards a lawyer will not
necessarily be considered ... as
extending to the lawyer’s
client, and where the antipathy
is against the lawyer but not
against the client personally,
recusal will not be required.
J. Shaman, S. Lubet, J. Alfini, Judicial
Conduct and Ethics §4.08, at 109-110 (2d ed.
1995) (footnotes omitted). “[A] judge will be
disqualified where he or she shows hostilityto
a lawyer that is of such a degree that it
adversely affects the judge’s state of mind
toward the lawyer’s client.” Id., at 110.
Disqualification is usually considered on a
case-by-case basis; blanket disqualification
due to alleged bias toward counsel is very
unusual. Id., at 111.
The Judicial Inquiry Commission first
addressed this subject in Advisory Opinion
85-243. There, a party was represented by an
attorney against whom the judge had
previously filed a complaint; the judge also
had reported questionable conduct to the
District Attorney. The judge stated that he
felt no personal conflict with counsel. The
OPINION 99-728
PAGE 2
Commission decided that it was for the judge
in the first instance to determine whether
proper grounds for recusal existed under
Canon 3C. Although personal bias and
prejudice is specifically addressed in Canon
3C(1)(a),theCommission cautionedthejudge
to be particularly mindful of Canon 3C(1).
Canon 3C(1) provides that a judge is
disqualified whenever “his impartialitymight
reasonably be questioned.”
In Advisory Opinion 86-281 and 86-284, the
Commission held that the mere fact that a
judge had reported to the District Attorney or
other law enforcement authority evidence
adduced at a trial that the judge thought
possibly constituted a prior or continuing
criminal offense did not establish grounds for
disqualification. The Commission concluded
that “reporting a suspected violation of the
law arising out of evidence adduced during a
trial falls within the judicial authority of a
sitting judge and that the judge’s appearance
of impartiality should not be affected by such
a report.” Advisory Opinion 86-284.
In Advisory Opinions 89-363, the judge had
formerlybeenaprosecutorandhadprosecuted
to mistrial an attorney representing parties
before him as judge. The Commission held
that the mere fact of such prosecution did not
cause disqualification, but that the judge
should carefully consider the facts and
circumstances known to him by virtue of that
prosecution and disqualify himself if, upon
suchexamination, hefoundfactswhichwould
cause his impartiality to be questioned by a
reasonable man. The Commission also
decided that the judge would be disqualified if
the proceeding involved the facts upon which
the prior prosecution was based.
In AdvisoryOpinion 97-656, the Commission
stated that a judge’s filing of a complaint with
the State Bar against an attorney-litigant is
generally not disqualifying. The Commission
analogized the situation to that of a contempt
proceeding:
Even where the contemptuous
conduct consists of strong,
personal criticismofthejudge,
disqualification is not
necessary. At some point,
though, a line will be crossed
where disqualification from
contempt proceedings is
mandated where a judge has
become biased or prejudiced.
Thus, where a verbal attack
upon a judge becomes
particularly offensive, or
where a judge becomes
enraged at offensive conduct,
recusal is necessary.
Advisory Opinion 97-565 (quoting Judicial
Conduct and Ethics, §4.09 at 111).
Because of the seriousness of the charges the
judge has made, as well as the surrounding
facts and circumstances made known to the
Commission, the Commission concludes that
a reasonable person might question the
judge’s impartiality in cases in which a party
is represented byanymember of the two firms
that have requested the judge’s recusal. Thus,
it is the opinion of the Commission that the
judge must recuse himself from any presently
pending case in which a party is currently
represented by any member of those two law
firms. It is the further opinion of this
Commission that such disqualification also
OPINION 99-728
PAGE 3
applies to any case in which any member of
those firms appears as initial counsel that is
filedwhileanydisciplinaryproceedingarising
out of the litigation in question continues.
REFERENCES
Alabama Advisory Opinions 85-243, 86-281,
86-284, 89-363, 97-656.
Alabama Canons of Judicial Ethics, Canons
3C(1) and 3C(1)(a).
J. Shaman, S. Lubet, J. Alfini, Judicial
Conduct and Ethics §§4.08 and 4.09 (2d ed.
1995).
This opinion is advisory only and is based on
the specific facts and questions submitted by
the judge who requested the opinion pursuant
to Rule 17 of the Rules of Procedure of the
Judicial Inquiry Commission. For further
information, you may contact the Judicial
Inquiry Commission, 800 South McDonough
Street, Suite 201, Montgomery, Alabama
36104; tel.: (334) 242-4089; fax: (334) 240-
3327; e-mail: [email protected].