FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2007-14
Date of Issue: September 25, 2007

ISSUE

Whether a judge is obligated to disqualify himself or herself when a lawyer from a law firm employing the judge's spouse as a paralegal appears before the judge.

ANSWER: Yes, unless all parties agree, upon disclosure of the relationship, to enter a remittal of disqualification pursuant to Canon 3F.

FACTS

The spouse of the Inquiring Judge is contemplating employment as a paralegal.  The Inquiring Judge asked if the judge would have to disqualify himself or herself from any case involving the law firm employing the spouse or only for those cases on which the spouse has worked.

DISCUSSION

Canon 3E(1) states that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned…."  The Canon then lists specific incidences when the judge must disqualify, including when "a person within the third degree of relationship to" the judge "is acting as a lawyer in the proceeding."  Fla. Code Jud. Conduct, Canon 3E(1)(d)(ii).  See also § 38.02, Fla. Stat. (2006).

This Committee's prior opinions have described a fairly broad rule of disqualification in questions involving a law firm's employment of a judge's family member.  We find Opinions 81-1, 92-8, and 97-8 to be controlling.  In those Opinions, we concluded that a judge was obligated to disqualify himself or herself in all cases involving a law firm that employed the judge's spouse.

Opinion 97-8 does provide, however, for the option of remittal of disqualification pursuant to Canon 3F.  Canon 3F provides:

A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge's disqualification and may 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.

REFERENCES

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

Fla. JEAC Ops.  81-1, 92-8, 97-8.

§ 38.02, Fla. Stat. (2006).

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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 Judge Lisa Davidson, Chair, Judicial Ethics Advisory Committee, The Moore Justice  Center, 2825 Judge Fran Jamieson Way, Viera, FL 32940.

Participating Members:
Judge Robert T. Benton, II, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Judge Michael Raiden, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III, Judge Richard R. Townsend, Judge Dorothy Vaccaro, Marjorie Gadarian Graham, Esquire and Patricia 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)