When did a judge have to recuse after a lawyer in a pending case was retained to represent the judge?

Plain-English summary

A judge expected the liability insurer to retain an attorney for a possible personal-injury suit against the judge. That attorney already represented parties in cases before the judge and might ask a firm colleague to research or write for the judge's defense.

The Commission said recusal began when the attorney in a pending case was engaged to represent the judge. The judge could take no further action in that case, including finishing a matter already under submission. A firm colleague who actively researched or wrote for the judge's case created the same impartiality concern when appearing before the judge.

If the judge's attorney withdrew from the case before the judge, the Commission said an uninvolved firm colleague could handle it without continuing disqualification, absent unusual additional circumstances. It reaffirmed the distinction between the judge's own attorney and other firm members.

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: Could the judge finish an already submitted case after the party's lawyer became the judge's lawyer?

A: No. The opinion said no further action could be taken after engagement.

Q: Did a firm colleague's work on the judge's case matter?

A: Yes. A colleague who performed research or writing for the judge's defense also triggered recusal when appearing as counsel.

Q: Could a different colleague take over after the judge's lawyer withdrew?

A: Yes, if that colleague had no involvement in the judge's case and no unusual additional circumstances existed.

Background and rules framework

Alabama Canon 3C(1) required disqualification when impartiality might reasonably be questioned. The opinion applied that standard to the judge's own attorney, a colleague actively involved in the judge's case, and an uninvolved colleague after the attorney's withdrawal.

Citations and references

The opinion cites Alabama Canon 3C(1); Advisory Opinions 88-336, 92-443, 96-616, and 98-692; Acromag-Viking v. Blalock, 420 So. 2d 60 (Ala. 1982); and Matter of Sheffield, 465 So. 2d 350 (Ala. 1984).

See also

• AL Judicial Ethics Op. 96-616: Judge's Lawyer and Firm

• AL Judicial Ethics Op. 92-443: Law Firm in Judge's Ethics Investigation

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 99-731

• 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: JUNE 30, 1999 ADVISORY OPINION 99-731
DISQUALIFICATION WHEN AN
ATTORNEY IN THE CASE OR A
MEMBER OF THE ATTORNEY’S FIRM
REPRESENTS THE JUDGE IN
UNRELATED LITIGATION
ISSUE
I. If a member of a judge’s attorney’s law
firm performs research and writing in
connection with the judge’s case, is the judge
disqualified from hearing unrelated cases in
which that member appears? Answer: Yes.
II. When an attorney is retained to represent a
judge, may the judge complete cases then in
progress before him in which that attorney
represents a party, including ruling on cases
already under submission? Answer: No, not
if the judge’s attorney continues in the case
before the judge; if the judge’s attorney
withdraws from a case before the judge, the
judge is not disqualified to proceed in the
event another member of the same firm who
has no involvement in the judge’s case
appears.
FACTS
The judge expects a suit to be filed against
him for personal injuries arising from an
accident, and the judge’s liability insurance
carrier intends to refer the case to a certain
attorney if such suit is filed. That attorney
may ask another member of his firm to do
research and writing in connection with the
judge’s case. The judge currently has cases in
progress before him in which a party is
represented by the attorney the judge expects
to be retained to defend him.
DISCUSSION
The Commission has previously held that a
judge is disqualified from a case in which a
party is represented by an attorney who
currentlyis representingthejudgein unrelated
litigation. TheCommission alsohas held that,
absent extraordinarycircumstances, a judge is
not disqualified from hearing a case in which
another member of the judge’s attorney’s law
firm appears. See, e.g., Advisory Opinions
92-443 and 96-616.
The disqualification from hearing cases in
which a party is represented by the judge’s
attorney is based on the general provision in
Canon 3C(1) that a judge is disqualified
whenever the judge’s “impartiality might
reasonably be questioned.” Recusal is
required under Canon 3C(1) when “facts are
shown which make it reasonable for members
of the public or a party, or counsel opposed to
question the impartiality of the judge.”
Acromag-Viking v. Blalock, 420 So.2d 60, 61
(Ala. 1982). This test may sometimes cause
disqualification of a judge who has no actual
bias. Matter of Sheffield, 465 So.2d 350, 156
(Ala. 1984).
It is the opinion of the Commission that it is
reasonable for a member of the public, a party,
or opposing counsel to question the
impartiality of the judge when another
attorneyin the case who practices law with the
judge’s attorney is actively involved in the
judge’s case. Thus, the Commission
concludes that a judge is disqualified from
hearing cases in which a member of the
judge’s attorney’s law firm appears where that
member performs research or writing in
connection with the judge’s case.
ADVISORY OPINION 99-731
PAGE 2
InAdvisoryOpinion 88-336,theCommission
held that a judge was disqualified to hear post-
trial proceedings in a case after an attorney
who was representing the judge’s spouse
appeared to represent a party in those
proceedings. It is the opinion of the
Commission that a judge’s disqualification
commences when an attorney in the case is
engaged to represent the judge, and that the
judge may take no further action in the case
after that point in time. Thus, a judge may not
complete a case in progress after an attorney
in the case is retained as the judge’s attorney.
However, the Commission also has held on a
number of occasions that, unless there are
extraordinary factors that would require
continued disqualification, a judge is not
disqualified to hear an action after a
circumstance causing disqualification has
ceased to exist. See, Advisory Opinion 98-

692. In Advisory Opinion 96-616 the
     Commission held that, absent unusual
     additional circumstances, if the judge’s
     attorney withdraws from a case pending
     before the judge, the judge is not disqualified
     to proceed in the event another member of the
     same firm who has no involvement in the
     judge’s case appears to handle the case. The
     Commission hereby reaffirms its decision in
     Advisory Opinion 96-616.
     REFERENCES
     Acromag-Viking v. Blalock, 420 So.2d 60, 61
     (Ala. 1982).
     Alabama Advisory Opinions 88-336, 92-443,
     96-616, 98-692.
     Alabama Canons of Judicial Ethics, Canon
     3C(1).
     Matter of Sheffield, 465 So.2d 350, 156 (Ala.
     1984).
     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].