FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-27
Date of Issue: October 31, 2006

ISSUE

Is disqualification required if the judge’s son’s law firm represents a party in a family law case and the parties in that family law case have a child appearing before the judge in a delinquency case? Although  the inquiring judge will not be the presiding judge in the family law case, the inquiring judge’s court utilizes a unified family court concept.

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 questions whether disclosure and/or disqualification is required if the Inquiring Judge’s son’s law firm represents a party in a family law case, and the parties in the domestic case have a child who is before the Inquiring Judge in the juvenile delinquency division. The Inquiring Judge’s son’s law firm will not be representing the child in the delinquency division, and the Inquiring Judge will not be presiding over the family law case. However, the Inquiring Judge’s court utilizes a unified family court concept. 

DISCUSSION

Canon 3E(1)(d)(ii), Florida Code of Judicial Conduct, requires a judge’s disqualification in proceedings in which the judge’s impartiality might reasonably be questioned, such as, when a person within the third degree of relationship to the judge is acting as a lawyer in the proceeding before the judge.  The Code of Judicial Conduct defines the judge’s child as within the third degree of relationship to a judge.

     In JEAC Opinion 98-20, the Committee held that pursuant to Canon 3E(1)(d)(ii), 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 held 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.

     Unified Family Court provides for one judge to resolve the various legal issues affecting one family, or for judges presiding over different cases involving the same family to confer and to coordinate pending litigation “to maximize judicial efforts, avoid inconsistent court orders, and avoid multiple court appearances by the parties on the same issues.”  See In re Report of Family Ct. Steering Comm., 794 So. 2d 518, 526 (Fla. 2001).

     Therefore, even though the Inquiring Judge is not presiding over the family law aspect of the parties’ case in which the Judge’s attorney-son’s law firm represents a party, the Inquiring Judge will be conferring with the family law judge about matters that affect both the resolution of the family law case and the delinquency case. 2

    Based upon Canon 3E(1)(d)(ii) and JEAC Opinion 98-20, the Inquiring Judge is ethically prohibited from presiding over any aspect of a case in a Unified Family Court matter in which the Inquiring Judge’s son is the attorney of record. 

REFERENCES

In re Report of Family Ct. Steering Comm., 794 So. 2d 518, 526 (Fla. 2001).

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.

_____________

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. 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