FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-17
Date of Issue: November 21, 2005

ISSUES

Whether the inquiring appellate judge, who has direct supervisory authority over central staff attorneys, should direct a central staff attorney to disqualify himself/herself from working on cases involving the entire legal department of a governmental agency that employs the central staff attorney’s spouse as an attorney.

ANSWER: No. The judge’s ethical duty is to direct the staff attorney not to work on cases in which the attorney’s spouse is involved.

FACTS

The inquiring judge is chief judge of an appellate court and has direct supervisory authority over the central staff attorneys employed by that court. One of the central staff attorneys advised the judge that his/her spouse is currently employed as an attorney with the Department of Corrections, handling litigation matters within the Offender Litigation Section of the General Counsel’s Office. The inquiring judge asks whether the judge should direct the central staff attorney to cease involvement in cases where the Offender Litigation Section of the Department of Corrections is involved and that raise matters involving sentence structure issues.

Approximately 25%-30% of the work of the appellate court’s central staff attorneys involves review of Sheley1 and Green2 matters that are handled by Offender Litigation Section attorneys. Sheley and Green procedures afford inmates review of a circuit court’s first-tier judicial review of, e.g., Parole Commission decisions.

In a Sheley matter, the circuit court might rule on an inmate’s petition for review of a Parole Commission order concerning gain time eligibility. On certiorari review in such a case, the appellate court would decide whether the circuit court applied the correct substantive law and, procedurally, whether the circuit court provided due process, or whether it departed from the essential requirements of the law, either substantively or procedurally. Sheley vs. Florida Parole Commission, 720 So.2d 216 (Fla. 1998).

On appeal in Green matters, the appellate court reviews circuit court decisions that are not based on grounds (like the merits) for which certiorari review is appropriate. Green vs. Michael Moore, Secretary, Florida Department of Corrections, 777 So.2d 425 (Fla. 1st DCA 2000).

The appellate court central staff attorneys address issues in Sheley matters that pertain to timeliness, service, securing the record, and issuance of orders to show cause directed to the Offender Litigation Section. In addition, the appellate court central staff attorneys make recommendations to the inquiring judge concerning disposition of routine motions. In both Sheley and Green matters, the central staff attorneys prepare merit summaries for the inquiring judge to review.

In the present case, the central staff attorney has appropriately recused himself/herself from those matters where the central staff attorney’s spouse is counsel of record in either the circuit court or the appellate court proceedings. The central staff attorney has asked the inquiring judge whether he/she should extend the recusal to those matters in which other Offender Litigation Section attorneys appear, even if the central staff attorney’s spouse has no association or participation in the case. There are approximately five or six other attorneys who work in the Offender Litigation Section.

DISCUSSION

Canon 3(C)(2) provides, “a judge shall require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.” Although the Code of Judicial Conduct does not directly apply to staff attorneys, the Code applies indirectly based on Canon 3(C) (2). See Fla. JEAC Ops. 97-3 and 01-12.

Canon 3(E)(1) states that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” Canon 3(E)(1)(d) applies to the relationships of judges to spouses and to relatives within the third degree. Logically, this section applies indirectly to the central staff attorney according to Canon 3(C)(2). Circumstances in which the Code presumes that a judge’s partiality might reasonably be questioned include a situation where the spouse of the central staff attorney is acting as a lawyer in the proceeding. Fla. Code Jud. Conduct, Canon 3(E)(1)(d)(ii). Recusal between the central staff attorney and spouse is appropriate in that setting.

However, in the present inquiry, the question extends even further. The issue is whether automatic disqualification of the central staff attorney is required in all cases involving the Offender Litigation Section of the Department of Corrections. It is not.

Spousal employment in a governmental agency does not automatically require disqualification in cases involving the entire governmental agency. See JEAC Op. 97-25. However, this Committee has made a distinction requiring disqualification when the spouse has supervisory authority or control over the personnel within that department. See JEAC Ops. 90-23 and 93-51. The same holds true when the inquiring judge’s central staff attorney has a spouse working for the Department of Corrections. The central staff attorney’s spouse apparently has no supervisory authority or control over the other attorneys in that department.

The Committee concludes that automatic disqualification of the central staff attorney whose spouse is employed by the Offender Litigation Section is not required with the entire Offender Litigation Section.

REFERENCES

Sheley vs. Florida Parole Commission, 720 So.2d 216 (Fla. 1998).

Green vs. Michael Moore, Secretary, Florida Department of Corrections, 777 So.2d 425 (Fla. 1st DCA 2000).

Fla. Code Jud. Conduct, Canon 3(C)(2); Canon 3(E)(1); Canon 3(E)(1)(d)(ii).

Fla. JEAC Ops.: 90-23; 93-51; 97-3; 97-25; 01-12.

_____________

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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Marjorie Gadarian Graham, Esq., Chair, Judicial Ethics Advisory Committee, 11211 Prosperity Farms Road, Oakpark, Suite D129, Palm Beach Gardens, Florida 33410.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Leslie B. Rothenberg, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy L. Vaccaro, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
Inquiring Judge (Name of inquiring judge deleted from this copy)

1. Sheley v. Florida Parole Commission, 720 So. 2d 216 (Fla. 1998).

2.Green v. Moore, 777 So. 2d 425 (Fla. 1st DCA 2000).