FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2008-06
Date of Issue: March 17, 2008
Whether the Inquiring Judge’s adult child who is a lawyer would be prohibited from accepting employment with a firm representing clients in matters before the Judge’s division.
ANSWER: No, but the Judge would be disqualified from hearing cases handled by the firm.
Whether disclosure on the record at the earliest possible time of the Judge’s adult child’s employment as a lawyer with the firm, coupled with a representation that the Judge’s child does not and will not have any role in the case, and will be “walled off” from the case internally within the firm, is sufficient to avoid disqualification.
Whether the Inquiring Judge may appoint a special master or receiver from a firm where the Judge’s adult child is employed as an associate attorney.
The Inquiring Judge is assigned to the civil division of the Judge’s circuit. The Judge is one of two judges in the circuit who hears civil cases of the kind assigned to the Judge’s current division. The Judge’s adult child is interviewing for positions as an associate attorney at local law firms that handle matters of the type heard by the Judge.
The Judge seeks an opinion as to whether the Judge’s adult child would be prohibited from accepting employment as a lawyer with a firm representing clients in matters before the Judge’s division. The Judge also seeks an opinion regarding the effect of disclosing on the record at the earliest possible time the child’s employment with the firm coupled with a representation that the Judge’s child does not and will not have any role in the case, and will be “walled off” from the case internally within the firm. The Inquiring Judge also asks whether a member of a law firm that employs the Judge’s child may accept a special master or receiver position in a case pending before the Judge.
The Florida Code of Judicial Conduct establishes standards for the ethical conduct of judges, and does not regulate the conduct of family members of the judge. See Fla. Code Jud. Conduct, Preamble;Fla. JEAC Ops. 01-08; 93-10 (“The Code does not regulate the employment of spouses.”); 88-10. Accordingly, the Code does not prohibit the Inquiring Judge’s child from accepting employment as a lawyer at a firm that handles matters heard by the division in which the Judge sits.
Canon 3E(1)(d) does however require a judge to 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 to the judge is acting as a lawyer in the proceeding, or “is known by the judge to have more than a de minimis interest that could be substantially affected by the proceeding.” The “third degree of relationship” includes children of the judge. Fla. Code Jud. Conduct, Definitions.
The Commentary to Canon 3E(1)(d) explains that the Code does not automatically require the disqualification of the judge in a proceeding in which a lawyer is affiliated with the same law firm as a relative of the judge. Nevertheless, in interpreting this provision of the Code and the Commentary, the Committee has consistently reached the conclusion that when a judge’s child is employed as a lawyer1 at a law firm2 appearing before the judge, the judge’s child has more than a de minimis economic interest that could be substantially affected by the proceeding. Fla. JEAC Ops. 07-16; 06-26; 98-20.
The Committee does not believe the procedure proposed by the Inquiring Judge would eliminate the need for disqualification. Even with a representation that the Judge’s child will not participate in the case and will be “walled off,” the Committee believes the Judge’s impartiality might reasonably be questioned. In JEAC Opinion 81-1, the Committee addressed the question of the propriety of a judge sitting on cases argued by a firm employing a judge’s spouse. In that opinion, the Committee quoted one of its members:
It is ill advised and should be avoided. The local bar, as well as the public, will sense favoritism in everything from the scheduling of hearings . . . to the judge’s rulings in his cases. Regardless of this actual impartiality, it is a no-win situation for (the judge) unless he disqualifies himself.
Likewise here, even with the procedure proposed, the Committee believes that favoritism may reasonably be feared by both the bar and the public in everything from the scheduling of hearings to the Judge’s rulings in cases. Further, even if “walled off,” as a lawyer-employee of the firm, the Judge’s child would still have a more than de minimis economic interest that could be substantially affected by the proceeding.
The Committee concludes therefore that the Judge must disqualify himself or herself from all proceedings in which the law firm employing the Judge’s child is involved, unless all parties agree to remittal of disqualification pursuant to Canon 3F. Fla. JEAC Opinions 06-26; 98-20.
With respect to appointments of other members of the law firm, the Committee is of the opinion that the same analysis applicable to issue two applies whether the member of the firm was appointed before the Judge’s child became employed or after the Judge’s child became employed. Because the law firm would be receiving compensation for services as a special master or receiver, and judicial decisions could impact such matters as the length of service or the scope of services, as a lawyer in the firm the Judge’s child has more than a de minimis interest that could be substantially affected by the proceeding. The Judge’s impartiality with respect to issues involving the special master or receiver might reasonably be questioned as well.
As a result, the Committee is of the opinion that the Judge would need to disqualify himself or herself from any proceeding in which the Judge’s child’s new law firm is already acting as a special master or receiver, unless the parties agree to remittal pursuant to Canon 3F.
Further appointments made after the Judge’s child becomes employed by the firm require an analysis of Canon 3C(4) which states that “[a] judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism.” The Commentary to Canon 3C(4) explains that appointees include referees, special magistrates, receivers and the like.
In Florida JEAC Opinion 82-13, the Committee opined that appointing a relative to serve as guardian ad litem, receiver, or master violates Canon 3B(4) [now Canon 3C(4)]. The Committee has not previously addressed however whether Canon 3C(4) prohibits appointment of another member of a law firm employing the Judge’s child.
In past decisions, the Committee has looked to Florida’s anti-nepotism law, section 112.3135, Florida Statutes, to analyze whether employment of an individual was prohibited by Canon 3C(4). In Florida JEAC Op. 99-10, the Committee addressed whether a judge’s wife could be employed as a court program specialist in the same division as the judge even though the judge in no way advocated her hire. In Florida JEAC Opinion 98-4, the Committee examined whether a judge’s niece-in-law could be employed as a judicial assistant. In both decisions, the Committee reached the conclusion that the appointment was not prohibited by section 112.3135 or Canon 3C(4), but that the appointment should either not be made or the judge should act with caution to make sure that the candidate was hired on the merits. In the case of the potential employment of the wife, the Committee opined that even if made by other judges in the division, the appointment violated the spirit of Canon 2 because of the appearance of favoritism in the hiring.
In analyzing the issue here, the Committee reaches a similar conclusion. Although appointment of a member of the Judge’s child’s law firm as a special master or receiver does not violate the Canon’s prohibition against nepotism, even if the appointment is made on the merits, the Committee believes the propriety of the appointment could reasonably be questioned because of the appearance of favoritism and is therefore prohibited by Canon 2. Seealso Fla. Code Jud. Conduct, Canon 2B (“A judge shall not allow family . . . relationships to influence the judge’s judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”).
Accordingly, the Committee is of the opinion that it would be inappropriate for the Judge to make a new appointment of a special master or receiver from the law firm employing the Judge’s child in any proceeding pending before the Judge. Further, the Committee is of the opinion that the appointment of a member of the Judge’s child’s law firm could not be the subject of remittal by the parties. See Fla. Code Jud. Conduct, Commentary to Canon 3C(4) (“Consent by the parties to an appointment . . . does not relieve the judge of the obligation prescribed by Section 3C(4).”).
Fla. Code Jud. Conduct, Preamble, Definitions, Canons 2, 2B, 3C(4), 3E(1)(d), and 3F, and Commentary to Canons 3C(4), 3E(1)(d), and 3F.
Fla. JEAC Ops.: 07-16; 07-14; 06-26; 01-08; 99-10; 98-20; 98-4; 97-25; 93-10; 88-10; 82-13; 81-1; 77-12; 77-4.
§ 112.3135, Fla. Stat. (2007).
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 Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Judge Michael Raiden, Judge Leslie B. Rothenberg, Judge McFerrin Smith, Judge, Judge Richard R. Townsend, Judge Dorothy Vaccaro, 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. The Committee notes that a different opinion might be reached if the Judge’s child were a law student employed as a part-time law clerk paid on an hourly basis. See Fla. JEAC Op. 07-16.
2. The Committee also notes that a different opinion might be reached if the judge’s child were employed at the Public Defender’s Office, State Attorney’s Office, or Legal Aid. See Fla. JEAC Ops. 97-25; 77-12; 77-4.