FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-26
Date of Issue: October 31, 2006

ISSUE

Is a judge’s disqualification required if a member of the law firm in which the judge’s son is employed as an attorney appears as counsel in a case before the judge?

ANSWER: Yes.

FACTS

The Inquiring Judge’s son is a practicing attorney in a large law firm.  Although the Inquiring Judge will not preside over cases in which the Inquiring Judge’s son is the attorney of record, the Inquiring Judge asks if disclosure and/or disqualification is required of the Inquiring Judge if members of the son’s law firm appear as counsel in a case before the Inquiring Judge.

DISCUSSION

JEAC Opinion 98-20 is dispositive of this inquiry.  In that opinion, this Committee held that even though the judge’s daughter would not personally be the attorney of record in the case before the judge, the judge should recuse himself from presiding over cases in which the law firm where his daughter is employed is the law firm of record, unless all parties agree to a remittal of disqualification pursuant to Canon 3F. 1   The Committee pointed out that Canon 3E(1)(d)(ii), 2  Florida Code of Judicial Conduct, requires a judge’s disqualification if the judge’s child is the attorney of record.  Canon 3E(1)(d)(iii) also requires a judge’s disqualification if a person within the third degree of relationship to the judge “is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding.”  The Committee held in JEAC Opinion 98-20 that a judge’s child has more than a de minimis economic interest that could be substantially affected by the proceeding when the judge’s child is associated with the law firm appearing before the judge. 3    

     

REFERENCES

Fla. Code Jud. Conduct, Canons 3E(1), 3F, and Commentary to Canon 3F.

Florida Judicial Ethics Advisory Committee Opinions: 98-20, 97-25,91-17,83-10,77-12,77-4

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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 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 Robert T. Benton, II, Chair, Judicial Ethics Advisory Committee, 301  S. MLK Jr. Blvd. Tallahassee, FL 32399.

Participating Members:
Judge Robert T. Benton, II, Judge Michael Raiden, Judge Lisa Davidson, Judge Leslie B. Rothenberg, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro, Judge Jose Rodriguez, Judge T. Michael Jones, Marjorie Gadarian Graham, Esquire & Patricia E. Lowry, 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
Inquiring Judge (Name of inquiring judge deleted from this copy)

1. Canon 3F permits a judge disqualified by the terms of Canon 3E to disclose on the record the basis of the judge’s disqualification and allows the judge to ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.  Fla. Code Jud. Conduct, Canon 3F. As a practical matter, a judge may wish to have all parties and their lawyers sign the remittal agreement although the commentary indicates that parties may act through counsel if counsel represents on the record that the party has been consulted and consents.  Fla. Code Jud. Conduct, Canon 3F, Commentary.

2. “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including…instances where…a person within the third degree of relationship…is acting as a lawyer in the proceeding.”  The Code of Judicial Conduct defines a person “within the third degree of relationship” as a “great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grand-child, nephew, or niece.” 

3. The Committee notes that a difference exists between a judge’s child’s employment at the Public Defender’s Office or the State Attorney’s Office as opposed to a private law firm.  In cases of a judge’s child’s employment at a governmental entity, disclosure of the judge’s child’s employment at that entity would be required, but automatic disqualification would not necessarily be mandated.  Fla. JEAC Op. 97-25; 91-17; 83-10; 77-12; 77-4