FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2007-16
Date of Issue: October 8, 2007
1. Whether a judge is automatically disqualified in all cases involving a law firm that employs the judge’s son-in-law, who is a third year law student, as a law clerk?
2. Whether a judge should disclose that his son-in-law is employed by the law firm as a law clerk?
The Inquiring Judge’s son-in-law is a third year law student and is employed by a law firm as a law clerk on an hourly basis. The son-in-law works primarily for one attorney with the law firm which is a major firm in a small community.
This inquiry requires an analysis of Canon 3E(1)(d), Florida Code of Judicial Conduct, that provides:
A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where…the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.
The Code of Judicial Conduct defines a third degree of relationship as a “great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece.”
Although a son-in-law is not related to the judge within the third degree, the son-in-law is a spouse of a person related within the third degree. Therefore, pursuant to Canon 3E(1)(d), the judge would be disqualified if the son-in-law is a party to the proceeding (or officer, director, or trustee of a party), a lawyer in the proceeding, has more than a de minimis interest which could be substantially
affected by the proceeding, or is a material witness. Since a part time law clerk does not appear to fall within any of these specific categories, disqualification would not automatically be triggered unless the judge’s impartiality might otherwise be reasonably questioned.
Issues of disqualification, arising out of the employment of a judge’s relative by a law firm, have been the subject of numerous opinions by this Committee. In the distant past, this Committee opined that disqualification was not required when the judge’s son was employed by a law firm as summer help in a non-legal capacity or when the judge’s son-in-law was a law clerk. Fla. JEAC Ops. 76-13, 79-7.
The more recent trend of opinions has required disqualification in almost all cases in which a relative of the spouse is employed by a law firm. The recent opinions are a clear departure from the above referenced opinions. For example, this Committee’s most recent opinion recommended disqualification when the judge’s spouse is employed by a law firm as a paralegal. Fla. JEAC Op. 07-14. Other examples are JEAC Opinion 82-17 that required disqualification when the judge’s son, who was not yet a member of the Florida Bar, was working with a law firm; JEAC Opinion 92-8 that required disqualification in cases involving a law firm in which the wife works (without specifying the nature of the employment); and Florida JEAC Opinion 03-18 that required disqualification in cases involving a law firm employing the judge’s niece, a second year law student, as a summer intern. The facts in JEAC Opinion 03-18 are very similar to the current inquiry, and if this Committee followed the rationale of that opinion, disqualification would be required.
This Committee is now of the opinion that the trend toward a bright line requiring disqualification in all cases involving the employment of a judge’s relative by a law firm may be misplaced. A bright line disregards the Commentary to Canon 3E(1)(d) which states:
The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that the judge’s impartiality might reasonably be questioned under Section 3E(1), or that the relative is known by the judge to have an interest in the law firm that could be substantially affected by the outcome of the proceeding under Section 3E(1)(d)(iii) may require the judge’s disqualification.
Therefore, issues of disqualification involving law firms employing relatives of a judge should be resolved on a case-by-case basis with careful consideration given to the relationship between the relative and the law firm. If the relationship suggests that the judge’s impartiality might reasonably be questioned, or that the relative is known by the judge to have an interest in the law firm that could be substantially affected by the outcome of the proceeding, then the judge is disqualified. The present inquiry concerns a relative who is a student, non-lawyer, working part-time on an hourly basis, and has a de minimis interest in the firm and the proceeding. Under those circumstances, it is unlikely that the impartiality of the judge might reasonably be questioned. However, the result may be different if the law clerk were actively working for the lawyer appearing before the judge or if the law clerk were actively working on a case pending before the judge.
This Committee recedes from JEAC Opinion 03-18 to the extent that it is inconsistent with this opinion. However, this Committee reaffirms its prior opinions which suggest that disqualification is required when a spouse is employed by a law firm, or a relative (or spouse of a relative) within the third degree is employed as a lawyer with a law firm. In these cases, the judge’s impartiality might reasonably be questioned.
Even though disqualification is not required under the facts of this inquiry, the Judge should disclose to the parties the relationship that the son-in-law has with the law firm. The Commentary to Canon 3E(1) states:
A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.
The employment of the son-in-law as a law clerk is a fact that the parties may consider relevant to the issue of disqualification. If a motion for disqualification is filed, the Judge should carefully consider whether the motion is legally sufficient and rule on the motion as a matter of law. However, the judge should be aware that disqualification is not required solely because of the disclosure.
Fla. Code Jud. Conduct, Canon 3E
Fla. JEAC Ops. 76-13, 79-7, 82-17, 92-8, 03-18, 07-14
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.
Judge Robert T. Benton, II, Judge Michael Raiden, Judge Lisa Davidson, Judge Kerry I. Evander, Judge McFerrin Smith, Judge Leslie B. Rothenberg, Judge Richard R. Townsend, Judge Dorothy Vaccaro, Judge Jose Rodriguez, Judge T. Michael Jones, & 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
Inquiring Judge (Name of inquiring judge deleted from this copy)