FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-06
Date of Issue: February 6, 2004

ISSUES

Whether a two-year period is an acceptable length of time for a newly elected judge to disqualify the judge from hearing any of the judge's law firm's cases.

ANSWER: Yes.

Whether a judge is required to announce or otherwise notify the parties when a lawyer from law firms employing the judge's two first cousins appears before the judge.

ANSWER: Yes.

Whether a judge may maintain membership in a non-profit, nonpartisan political and public affairs organization.

ANSWER: Yes.

FACTS

A newly elected judge intends to enter an order of disqualification in any case where the judge's prior law firm is counsel. The judge intends to enter such orders for a two-year period of time. The inquiring judge questions whether this is an acceptable length of time.

The judge has two first cousins who are attorneys in two different law firms that practice in the county in which the judge presides. The judge intends to notify the parties involved in cases in which the judge's cousins are the counsel of record of their familial relationship. The judge does not plan to announce or otherwise notify the parties each time another lawyer from a cousin's law firms appears before the judge. The inquiring judge questions whether this is an appropriate way to handle the situation.

The judge is a member of a club that is a non-profit, non-partisan political and public affairs organization incorporated under the laws of Florida. The sole purpose of the club is to inform and educate the community's business, political, and social interests, and to promote more active participation by all citizens in the democratic process. The club meets once a month, at which time the club sponsors prominent and knowledgeable speakers on state, national, and international matters. The inquiring judge questions whether to maintain or resign membership in the club.

DISCUSSION

Two years is a reasonable period of time for a judge to disqualify himself or herself from hearing any cases handled by the judge's former law firm, so long as at the end of two years there are no financial ties between the judge and former law firm including, but not limited to, outstanding fees, buyout, or ownership of real estate.

This Committee has addressed similar inquiries in Fla. JEAC Op. 93-17 and Fla. JEAC Op. 93-19. In Fla. JEAC Op. 93-17, several Committee members stated that "the decision to disclose is not necessarily based on time. It is a question of whether the court's impartiality might reasonably be questioned. The test is whether an objective, disinterested person knowing all the circumstances would reasonably question your [the judge's] impartiality." In Fla. JEAC Op. 93-19, several Committee members stated that "there is a custom that judges do not hear for one year cases involving former law partners or associates."

Furthermore, in Fla. JEAC Op. 01-17, the Committee stated that, "This disclosure of information is not an admission of bias but is necessary to enable a party to make an informed decision as to whether or not to seek disqualification. A reasonable period of time has previously been suggested by the Committee to be from several months to one year, depending upon the unique facts and circumstances of the representation." In this opinion, the Committee cited In re: Frank, 753 So. 2d 1228 (Fla. 2001), where the Florida Supreme Court determined that in making decisions regarding disqualification, "Judges must do all that is reasonably necessary to minimize the appearance of impropriety. They must remain cognizant of the fact that even in situations where they personally believe that their judgment would not be colored, public perception may differ."

Fla. Code Jud. Conduct, Canon 3E(1)(d)(ii) addresses judicial disqualification and provides:

E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

* * *

(ii) is acting as a lawyer in the proceeding. The Code of Judicial Conduct defines "third degree of relationship" to mean:

The following persons are relatives within the third degree of relationship: great grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great grandchild, nephew or niece.

Under the Code of Judicial Conduct, a judge is not required to disqualify himself or herself when the judge's cousin is acting as a lawyer in a proceeding before the judge. The 1973 version of the Code of Judicial Conduct recognized in the Commentary to Canon 3 that disqualification is not required in such circumstances:

According to the civil law system, the third degree of relationship test would, for example, disqualify the judge if his or his spouse's father, grandfather, uncle, brother, or niece's husband were a party or lawyer in the proceeding, but would not disqualify him if a cousin were a party or lawyer in the proceeding. In Re The Florida Bar - Code of Judicial Conduct, 281 So. 2d 21, 26 (Fla. 1973)

Disclosure differs from disqualification. The judge must disclose the familial relationship whenever the cousins or members of their respective law firms appear before the judge. Fla. JEAC Op. 04-01. The Commentary to Canons 3E(1) and 3E(1)(d) states in pertinent part:

Canon 3E(1). A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis...

* * *

Canon 3E(1)(d). The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that "the judge's impartiality might reasonably be questioned" under Section 3E(1), or that the relative is known by the judge to have an interest in the law firm that could be "substantially affected by the outcome of the proceeding" under Section 3E(1)(d)(iii) may require the judge's disqualification.

In Fla. JEAC Op. 03-18, the Committee addressed a similar issue. There the judge's niece was employed by a law firm as a summer associate. The Committee stated that the judge was obliged to disclose the relationship and to disqualify himself or herself when the law firm employing the judge's niece appeared before the judge.

In W.I. v. State, 696 So. 2d 457, 458 (Fla. 4th DCA 1997), the court stated:

A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.

Regarding the third issue, Canon 5A(1)(3) of the Fla. Code Jud. Conduct states:

A. Extrajudicial Activities in General. A judge shall conduct all of the judge's extrajudicial activities so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.

Fla. Code Jud. Conduct, Canon 5(C)(3)(b)(iii) provides in pertinent part that:

(3) A judge may serve as an officer, director, trustee or nonlegal advisor of an educational, religious, charitable, fraternal, sororal, or civic organization not conducted for profit, subject to the following limitation and the other requirements of this Code.

(b) A judge as an officer, director, trustee or nonlegal advisor, or as a member or otherwise:

(iii) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.

The Commentary to Fla. Code Jud. Conduct, Canon 5A recognizes that, "complete separation of a judge from extrajudicial duties is neither possible nor wise; a judge should not become isolated from the community in which the judge lives."

Fla. Code Jud. Conduct, Canon 2B states that, "a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."

Fla. Code Jud. Conduct, Canon 2C states that, "a judge should not hold membership in an organization that practices invidious discrimination on the basis of race, sex, religion, or national origin." The Commentary to Canon 2C goes on to say , the part, that "membership of a judge in an organization that practices invidious discrimination gives rise to the perceptions that the judges impartiality is impaired."

Assuming that the club is nonprofit and non-partisan, the judge may maintain membership in the club subject to the requirements of the cited Canons.

REFERENCES

In re: Frank, 753 So. 2d 1228 (Fla. 2001)
W.I. v. State, 696 So. 2d 457, 458 (Fla. 4th DCA 1997),
Fla. Code Jud. Conduct, Canon 3E(1)(d)(ii)
Fla. Code Jud. Conduct, Canon 3D
Fla. Code Jud. Conduct, Canon 5A(1)(3)
Fla. Code Jud. Conduct, Canon 5(C)(3)(b)(iii)
Fla. Code Jud. Conduct, Canon 2B
Fla. Code Jud. Conduct, Canon 2C
Fla. JEAC Op. 93-17
Fla. JEAC Op. 93-19
Fla. JEAC Op. 01-17
Fla. JEAC Op. 03-18
Fla. JEAC Op. 04-01
Rule 2.160, Fla. R. Jud. Admin.

_____________

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact Judge Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Karen Cole, Judge Lisa Davidson, Judge Phyllis Kotey, Judge Melanie May, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
All Committee Members
Thomas D. Hall, Clerk of Supreme Court
Execute Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)