FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2008-18
Date of Issue: September 26, 2008

ISSUES

(1)     Whether a judge/spouse of the elected Public Defender is disqualified from presiding over criminal cases involving the public defender’s office after the spouse’s retirement.

ANSWER: No. After retirement, the former relationship of the Inquiring Judge’s spouse with the public defender’s office is relevant to the question of disqualification, however, and should be disclosed for a reasonable period of time.

(2)     Whether a judge/spouse of the elected Public Defender is disqualified from public defender cases after the spouse’s retirement where the judge’s spouse may have been privy to privileged communications.

ANSWER: Yes, but  disqualification is required only if the Public Defender was, in fact, privy to confidential information and the Inquiring Judge has personal knowledge of disputed evidentiary facts concerning the proceeding.

(3)     Whether a judge/spouse of the elected Public Defender is disqualified from public defender cases after the spouse’s retirement where the spouse may be called to testify in post-conviction  hearings.

ANSWER: No, unless the judge’s spouse is a witness.

FACTS

A circuit’s elected Public Defender is retiring after many years in office.  The Public Defender’s spouse, the Inquiring Judge, has never been assigned to a criminal docket because of the obvious ethical issues.  However, the judge has been selected for rotation to the Felony Division after the Public Defender’s retirement.  The judge’s docket will necessarily include defendants represented by the public defender’s office.  During the tenure as the elected Public Defender, the Inquiring Judge’s spouse did not carry a caseload, had only occasional contact with clients and was primarily devoted to administrative, training, personnel and supervisory duties.  As part of the supervisory duties, however, the Public Defender was privy to confidential attorney-client discussions in cases that will not be concluded for several months after January, 2009.  Occasionally, the former Public Defender may be subpoenaed to testify in post-conviction hearings.

DISCUSSION

Canon 3E of the Florida Code of Judicial Conduct addresses the topic of judicial disqualification. Specifically, Canon 3E(1) provides,

(1) 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:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;
….

(c) the judge knows that he or she… or the judge's spouse… has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding;

(d) 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;
….

Accordingly, the Code presumes a judge's partiality might reasonably be questioned where the judge's spouse is acting as a lawyer in the proceeding. Canon 3E(1)(d)(ii).  As is apparently recognized by the Inquiring Judge, the elected Public Defender is the attorney of record in cases where the public defender has been assigned. See Section 27.51(1), Fla. Stat. (2008).  As such, there is no question that the Inquiring Judge is disqualified by the terms of Canon 3E from hearing cases involving the public defender’s office for as long as the judge’s spouse leads the office.  This Committee reached this conclusion in Fla. JEAC Op. 01-05.  However, prior opinions do not address the issues now presented.  The instant inquiry may appropriately be framed as whether, after the Public Defender’s retirement, the judge's impartiality might reasonably be questioned in cases involving the Public Defender’s office. Broadly stated, whether a judge is disqualified based on his/her spouse’s former relationship with a law firm presently before the judge must be decided on a case-by-case basis under the provisions of Canon 3E.   

The employment of a judge's spouse or other relatives can create an ethical violation for the judge if the employment is sufficiently involved or related to the judge's particular court or its operation. As this Committee recognized in Fla. JEAC Op. 02-15, the result depends upon the relationship of the employing entity to the judge and the spouse's degree of participation. This committee noted that inquiries of this nature are fact specific and must be resolved on a case by case basis.

In Fla. JEAC Op. 01-17, this Committee decided that disclosure of a spouse's former relationship with a law firm that represented a party in a pending case is “mandatory if the judge believes the information is relevant to the question of disqualification, and disqualification is required if the judge's impartiality might reasonably be questioned.”  In that opinion, we concluded that the determination of whether the judge's impartiality might reasonably be questioned depends upon, (1) the nature and extent of the relationship between the spouse and the attorney, (2) whether the attorney was personally involved with the spouse, (3) the monetary or personal significance of the case to the spouse, and (4) the passage of time since the representation. Fla. JEAC Op. 93-17; Fla. JEAC Op. 93-19.  This “test” may also be applied to resolve the instant inquiry.

First, in considering the nature and extent of the relationship between the elected public defender and assistant public defenders, the latter are appointed at the sole discretion of the elected public defender and serve at the pleasure of the public defender. See Section 27.53(1), Fla. Stat. (2008).  For this reason, the Inquiring Judge is currently prohibited from hearing cases involving the public defender’s office.  However, after the Inquiring Judge’s spouse’s retirement, the relationship giving rise to a reasonable question of impartiality ceases to exist.  In other words, the facts causing the judge’s impartiality to reasonably be questioned are remedied.  To impose an indefinite blanket prohibition from permitting the Inquiring Judge to hear all criminal cases involving the public defender’s office, despite the spouse’s retirement or the passage of time from retirement, is too broad an application. Nevertheless, the Inquiring Judge’s spouse’s former relationship with the public defender’s office may be relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification, pursuant to the Commentary to Canon 3E(1).  Therefore, generally, after the Public Defender’s retirement, the Inquiring Judge may hear cases involving the public defender’s office.  However, the spouse’s former relationship with the public defender’s office should be disclosed for a reasonable period of time.  See Fla. JEAC Op. 05-05.

As further recognized by the Inquiring Judge, the spouse may have been privy to privileged communications between assistant public defenders and defendants in cases that are likely to come to the criminal docket.  Canon 3E(1)(a), provides that a judge’s impartiality might reasonably be questioned when the judge has personal knowledge of disputed evidentiary facts concerning the proceeding.  In Fla. JEAC Op. 91-17 this Committee found that, although disqualification is not automatic just because the spouse works as an assistant public defender, if the circumstances of the case somehow place the judge's impartiality in question, the judge should disqualify.  Based on the foregoing, if the Public Defender was, in fact, privy to confidential information and the Inquiring Judge has personal knowledge of disputed evidentiary facts concerning the proceeding, disqualification is required.  Again, this determination is best made on a case-by-case basis. 

The third prong of this “test” to determine whether the judge's impartiality might reasonably be questioned addresses the monetary or personal significance of the case to the spouse.  Again, better determined on a case-by-case basis, the Inquiring Judge should consider whether any particular case was of personal significance to the Public Defender.  If this query is answered in the affirmative, disqualification is required.

Lastly, if the Inquiring Judge’s spouse is subpoenaed to testify in a post-conviction hearing, the Inquiring Judge is necessarily disqualified in that case.  Fla. JEAC Op. 08-03.

REFERENCES

Sections 27.51(1), 27.53(1), Fla. Stat. (2008).
Code of Judicial Conduct: Canons 3E, 3E(1), 3E(d)(ii),
Fla. JEAC Ops. 08-03, 05-05, 02-15, 01-17, 01-05, 93-19, 93-17, 91-17.

_____________

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 C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 101 N. Alabama Avenue, Suite 437, Deland, FL 32724.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.


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)