FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-06
Date of Issue: February 25, 2005

ISSUES

Must a judge disclose a spouse’s business relationship with an attorney when handling cases involving that attorney’s firm?

ANSWER: Yes.

If the judge discloses the spouse’s business relationship with the attorney, is recusal automatically required?

ANSWER: No.

FACTS

The inquiring judge’s spouse is the sole shareholder in a “subchapter S” corporation. The corporation owns a sailboat which is available for charter and which docks at a facility owned by a local attorney. Members of the attorney’s firm occasionally appear before the judge. The judge has no individual interest in the corporation and apparently does not participate in any corporate decisions (such as the choice of dock space). The corporation is only one of several tenants and is charged the same rent as any other. The judge inquires whether disclosure of this relationship is mandatory and, if so, whether automatic recusal is required.

DISCUSSION

As noted in many published ethics opinions including our most recent, Fla. JEAC Op. 05-05, “disclosure is different from recusal or disqualification.” That is, a judge may sometimes be compelled to disclose information even when the judge does not personally feel that it impacts the judge’s ability to be fair and impartial. Fla. JEAC Op. 04-35. Providing such information permits parties to decide, with full knowledge, whether to seek disqualification of the judge. No bright-line test exists for separating what must be disclosed from what need not be. Instead, such inquiries, including those about spousal activities, are generally resolved on a case-by-case basis. Fla. JEAC Op. 03-08.

In the present case the attorney and the judge’s spouse do have a continuing business relationship of sorts, albeit one in which the spouse (more accurately the spouse’s corporation) is essentially a customer of the attorney. The success of the attorney’s practice, or for that matter the attorney’s on-the-side marina business, is immaterial to this relationship. If there is any basis for concern, it stems from a perception that the attorney could retaliate against the spouse’s business as a result of adverse rulings by the judge, or that the judge would lean in the attorney’s favor to prevent this from happening.

Whether this is a reasonable concern is certainly debatable. Factors which might be relevant in making this determination include the length of time the business relationship has existed, whether the relationship is one of unusual value to the judge’s spouse, whether the attorney takes an active role in the business, whether and how frequently the attorney has face-to-face dealings with the spouse, and whether the attorney and the spouse (as well as the judge) share other professional or personal relationships. If, after thorough consideration of all relevant factors, the judge thinks it possible that a party might reasonably express concern over the judge’s ability to remain impartial, the existence of the relationship should be disclosed.

If the judge opts for disclosure of the relationship, recusal need not automatically follow. This would be necessary if the judge’s spouse “is known by the judge 1 to have more than a de minimus interest that could be substantially affected by the proceeding.” Canon 3E(1)(d)(iii). The facts provided by the inquiring judge suggest this is not the case. Of course, any motion for disqualification should be given careful and open-minded consideration.

REFERENCES

Canon 3E(1)(d)(iii)

Canon 3E(2)

Fla. JEAC Op. 03-08, 04-35, and 05-05.

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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 Melanie May, Judge Michael Raiden, 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
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)

1. It should be noted that Canon 3E(2) requires judges to “keep informed about the economic interests of the judge’s spouse.”