FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-17
Date of Issue: October 11, 2011

ISSUES

Whether a judge is required to recuse himself/herself when an attorney who is appearing in a case before the judge is the spouse of an attorney representing the judge in an unrelated civil matter, where the spouses are, and always have been, in different firms?

ANSWER: No, so long as the attorney spouse involved in the case before the judge has no financial stake in the outcome of the judge’s case and the judge’s attorney retains the confidentialities of the attorney-client relationship with the judge from the attorney spouse.

Whether a judge is required to disclose to the parties that an attorney who is appearing in a case before the judge is the spouse of an attorney representing the judge in an unrelated civil matter, where the spouses are, and always have been, in different firms?

ANSWER: Yes.

FACTS

An attorney representing a party appearing before the inquiring judge is married to an attorney who is representing the judge in an unrelated civil matter.  The attorney spouses are not in the same firm and the attorney representing the judge has never been affiliated with the attorney’s spouse’s firm.  The judge asks if recusal or disclosure is required when the spouse appears before the judge. The inquiring judge acknowledges awareness of this Committee’s opinion in JEAC Op. 05-15 which concluded that a judge who is represented by an attorney in a lawsuit must disqualify himself/herself from all cases in which the attorney, or members of the attorney’s law firm, appear before the judge.

DISCUSSION

Canon 3B(1) of Florida’s Code of Judicial Conduct provides, in pertinent part, “A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.”  Canon 3E of the Code sets forth the circumstances under which disqualification is necessitated.  Canon 3E(1) of the Code states: "A judge shall disqualify himself or herself in a proceeding in which a judge's impartiality might reasonably be questioned." (emphasis supplied). The Commentary1 to Canon 3E(1) provides:

Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared, unless the disqualification was waived by the parties after disclosure by the judge.

Canon 2 is also relevant.  It states that, "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." (emphasis supplied).  The Commentary to Canon 2 notes that "The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." (Emphasis supplied.)

In making decisions regarding disqualification, the Supreme Court of Florida, in the case of In re: Frank, 753 So. 2d 1228 (Fla. 2000), gave Florida’s judges the following guidance:

Judges must do all that is reasonably necessary to minimize the appearance of impropriety. They must remain cognizant of the fact that even in situations where they personally believe that their judgment would not be colored, public perception may differ.

In re: Frank, 753 So. 2d at 1240. Although the Frank case involved an appellate judge, the Supreme Court's discussion of Canon 3E appears to be equally applicable to trial judges.

A judge presiding over an action, wherein an attorney appears from the firm who represents the judge, creates an impermissible appearance of impropriety.  Fla. JEAC Op. 99-13 (receding from Fla. JEAC Op. 79-02 which concluded that a judge was not necessarily required to disqualify himself when members of the firm representing the judge appeared in matters before the judge).   Thus, the Committee determined that if a relationship with an attorney requires the judge’s disqualification from any cases in which that attorney represents a party then disqualification applies when any member of the attorney’s firm appears before the judge.  Fla. JEAC Op. 99-13.  Therefore, a judge should automatically recuse herself/himself when an attorney who is a member of the firm representing the judge appears before her/him. Fla. JEAC Op. 99-13; see also Fla. JEAC Op. 05-15.  In considering the unique relationship between the judge and an attorney or law firm representing the judge the Committee observed:

The attorney-client relationship is among the most revered professional relationships in our society. The very foundation of this relationship is based upon trust and confidentiality. It would be hard to imagine that litigants, even in uncontested matters, would not be distrustful of the impartiality of a judge in a matter in which a law firm presently representing the judge was the firm of record in a matter before that judge.

Fla. JEAC Op. 99-13.

Turning to the instant inquiry, the Committee believes that the judge’s impartiality in a case may not reasonably be questioned wherein an attorney representing a party appearing before the judge is married to an attorney who is representing the judge in an unrelated civil matter, so long as the attorney spouses are not in the same firm, the attorney representing the judge has never been affiliated with the attorney’s spouse’s firm, and the attorney spouse in the case before the judge has no financial stake in the outcome of the judge’s case with the attorney’s spouse.  It does not appear from the inquiry that the attorney spouse in the case before the judge has any financial stake in the outcome of the judge’s case with the spouse who is representing the judge.

At least three considerations dictate this result.  First, the judge’s selection of the attorney to represent the judge in the civil matter reflects the judge’s confidence in that attorney’s competence and reputation to handle the matters entrusted to the attorney and does not connote any bias or consideration for the attorney’s spouse’s reputation or competence.  Next, the judge’s attorney is obligated to maintain the confidentialities of the attorney-client relationship with the judge and must not divulge those to the attorney spouse, as might occur if the spouses were members of the same firm.  Finally, with no financial stake in the outcome of the judge’s case, any material appearance of impropriety resulting from the attorney spouse’s appearance before the judge is dissipated.

Some aspects of this may be likened to a case where disqualification is required because a member of the judge’s immediate family may profit in more than a de minimis amount from a case before the judge. In such cases, the existence of a potential financial stake in the case by someone in a close relationship with the judge is significant to a resolution of whether or not the judge is subject to disqualification.  For example, this Committee has opined that disqualification is required in all cases involving a law firm when a judge’s son is employed as an attorney in the firm.  See Fla. JEAC Ops. 06-26 and 08-06.  Disqualification is also required in all cases involving a law firm where the judge’s spouse is a paralegal.  Fla. JEAC Op. 07-14.  But the Committee determined disqualification is not automatically required in all cases involving a law firm that employs the judge’s son-in-law as a part-time law clerk because the son-in-law has no more than a de minimis interest in most proceedings and the judge’s impartiality is unlikely reasonably to be questioned; however, disclosure is required, and disqualification might be required if the son-in-law was working on the case before the judge.  Fla. JEAC Op. 07-16 (endorsing a case-by-case analysis and receding from Fla. JEAC  Op. 03-18, which had determined that disqualification was required when a law firm employed the judge’s niece as a summer intern).

Thus, even though disqualification may not be required in a case, the judge still has a duty to disclose facts and information relevant to the parties’ consideration of whether or not the judge should be disqualified.  The Commentary to Canon 3E(1) of the Code provides, in pertinent part:

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.

In its opinion in In re: Frank, supra, the Supreme Court noted the distinction between a duty to disclose and a duty to disqualify and concluded that there are different standards for disclosure and disqualification.  The Court stated:

Specifically, because 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,” it appears that the standard for disclosure is lower.  In other words, a judge should disclose information in circumstances even where disqualification may not be required.

In re: Frank, 753 So. 2d 1228, 1239 (Fla. 2000).

In JEAC Op. 01-17 the Committee observed that a judge is disqualified from hearing cases in which one of the parties was represented by a law firm currently representing the judge’s spouse’s law firm in a malpractice action.  The Committee further opined that, for a reasonable time after the representation is concluded, the judge must at least disclose this relationship to the parties in a suit before the judge if that firm is representing one of the parties.  The Committee noted the distinction between “disclosure” and “disqualification”, that disclosure does not necessarily require disqualification pursuant to Canon 3E, that different standards govern disqualification and disclosure, and that the standard for disclosure is lower. See Fla. JEAC Op. 01-17 (citing In re: Frank, supra).

The Committee determined that disclosure is mandatory where the judge believes the information is relevant to the question of disqualification, and the Committee noted that disqualification is required if the judge's impartiality might reasonably be questioned.  Fla. JEAC Op. 01-17.  According to the Committee, the determination of whether the judge's impartiality might reasonably be questioned depends upon the nature and extent of the relationship between the spouse and the attorney, whether the attorney was personally involved with the spouse, the monetary or personal significance of the case to the spouse, and the passage of time since the representation. Fla. JEAC Op. 01-17; see also Fla. JEAC Ops. 93-19 and 93-17.  Further, if a judge believes that a relationship with an attorney must be disclosed then that same disclosure applies when any member of the attorney's law firm appears before the judge.  Fla. JEAC Op. 99-13.

Regarding the instant inquiry, although the judge is not required to disqualify herself/himself from cases in which the judge’s attorney’s spouse is appearing before the judge, the judge should disclose the relationship for as long as the attorney represents the judge and for a reasonable period of time following the conclusion of the attorney’s representation.  Disclosure of such information is not an admission of bias but is necessary to enable a party to make an informed decision as to whether or not to seek disqualification. The Committee has previously suggested that a reasonable period of time is from several months to one year, depending upon the unique facts and circumstances of the representation.  See Fla. JEAC Ops. 01-17, 93-19 and 86-09.

In conclusion, the inquiring judge must disclose to the parties appearing before the judge that an attorney representing one of the parties is the spouse of an attorney representing the judge in an unrelated civil case, even though the attorney spouses are not in the same firm and the attorney representing the judge has never been affiliated with the attorney’s spouse’s firm.  However, disqualification is not automatically required, so long as the attorney spouse involved in the case before the judge has no financial stake in the outcome of the judge’s case and the judge’s attorney retains the confidentialities of the attorney-client relationship with the judge from the attorney spouse.

REFERENCES

In re: Frank, 753 So. 2d 1228 (Fla. 2000)
Fla. Code Jud. Conduct, Canons 2, 3B(1), and 3E(1)
Fla. JEAC Ops. 08-06, 07-16, 07-14, 06-26, 05-15, 01-17, 99-13, 93-19, 93-17 and 86-09.

_____________

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 a 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. See 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. See Id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esq., Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esq., Judge José Rodriguez, 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)

1. “The text of the Canons and Sections … is authoritative. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections. The Commentary is not intended as a statement of additional rules.” Preamble, Fla. Code of Judicial Conduct.