FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-02
Date of Issue: January 20, 2012

ISSUE

Whether a county judge whose child works in the state attorney’s office in the same county is automatically disqualified in all criminal cases?

ANSWER: No, but the parties should be informed that the child works for the state attorney.

FACTS

The inquiring county judge is assigned to a trial division and routinely presides over felony and misdemeanor jury trials.

The inquiring judge’s child will soon graduate from law school and seek employment in the same county with the state attorney’s office.  The inquiring judge acknowledges that “[the child] could not and would not handle any cases assigned to my division.” But the inquiring judge asks whether this family relationship would disqualify the inquiring judge from presiding over any and all criminal cases.    

DISCUSSION

In ruling out sitting on cases “handle[d]” by the judge’s child, the inquiring judge implicitly acknowledges Canon 3E(1), which states:  “A judge shall disqualify himself or herself” where “the judge or the judge’s spouse, or a person within the third degree of relationship to either of them . . . is . . . a lawyer in the proceeding . . . .”  Fla. Code Jud. Conduct, Canon 3E(1)(d)(ii).  See Fla. JEAC Op. 08-06.

More generally, Canon 3E(1) requires that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s  impartiality might reasonably be questioned.”  Fla. Code Jud. Conduct, Canon 3E(1).

The inquiring judge asks about disqualification, but there is also the related question of disclosure.  Commentary to the Canon says: “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.”  Fla. Code Jud. Conduct, Commentary to Canon 3E(1) (emphasis supplied).

          In response to another inquiry, one made by a judge with regard to hearing cases in which the judge’s child worked for a private law firm, we said:

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.

Fla. JEAC Op. 08-06.  Part of our rationale in JEAC Opinion 08-06 was the judge’s child’s (concededly de minimis) economic interest.

To like effect, we stated in another, earlier opinion that a judge should not (absent remittal) preside over cases in which his son’s law firm appeared:

JEAC Opinion 98-20 is dispositive of this inquiry. In that opinion, this Committee held that even though the judge’s daughter would not personally be the attorney of record in the case before the judge, the judge should recuse himself from presiding over cases in which the law firm where his daughter is employed is the law firm of record, unless all parties agree to a remittal of disqualification pursuant to Canon 3F. The Committee pointed out that Canon 3E(1)(d)(ii), Florida Code of Judicial Conduct, requires a judge’s disqualification if the judge’s child is the attorney of record. Canon 3E(1)(d)(iii) also requires a judge’s disqualification if a person within the third degree of relationship to the judge “is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding.” The Committee held in JEAC Opinion 98-20 that a judge’s child has more than a de minimis economic interest that could be substantially affected by the proceeding when the judge’s child is associated with the law firm appearing before the judge.

Fla. JEAC Op. 06-26 (footnotes omitted) (emphasis supplied).  See also Fla. JEAC Op. 06-27 (disqualification appropriate where judge’s son is employed by law firm as lawyer).  Cf. Fla. JEAC Op. 07-16 (disavowing a bright-line rule and stating that automatic disqualification is not required where judge’s son-in-law, a law student, is employed by law firm as a law clerk).

An employee of a governmental legal office does not have even a de minimis economic interest of the kind the canons are concerned with.  In the context of a large, multi-faceted governmental legal office, the “fact specific” question becomes whether the judge’s relative’s work as an employee of the office “is sufficiently involved or related to the judge's particular court or its operation,” and the need for disqualification turns on “the relationship of the employing entity to the judge and the spouse's [or other relative’s] degree of participation.”  Fla. JEAC Op. 03-08.  

 “This Committee opined in Fla. JEAC Op. 77-12 that a judge is not disqualified merely because the judge's relative is employed by the State Attorney's Office, the Public Defender's Office (Fla. JEAC Op. 77-4), Legal Services Corporation (Fla. JEAC Op. 83-10), or Legal Aid (Fla. JEAC Op. 97-25).”  Fla. JEAC Op. 03-08.   (On the other hand, disqualification is required where the judge’s relative has plenary authority over the governmental legal office as, for example, the elected public defender has over the public defender’s office.  See id.)

Most recently, we advised a judge against sitting on cases for which the judge’s spouse had supervisory responsibility in the state attorney’s office.  We said:

Consistent with the reasoning in Committee opinions 01-05 and 10-09, and the standards set forth in Canons 3E (1)(d)(ii) and 2A, the appearance of impropriety created when the presiding judge’s spouse is in a position of authority over that county’s State Attorney’s office militates in favor of a blanket disqualification from all felony arraignments in that county for the inquiring judge.

Fla. JEAC Op. 11-21. Nothing in the inquiry we address today indicates the judge’s child has or will have supervisory authority, but we are not unaware that cases may pass through many lawyers’ hands in state attorney’s and other governmental legal offices. 

We saw no need for disqualification in domestic violence cases where lawyers from the same legal aid office in which the judge’s spouse worked appeared, because the wife worked in the housing benefits section of the legal aid office and did not handle domestic violence or dissolution cases.  Fla. JEAC Op. 97-25.  A former assistant public defender could sit, we said, where he had done homicide cases almost exclusively in the five years before he took the bench, and planned not to hear homicide cases, nor any other case about which he had learned anything while he was in the public defender’s office.  Fla. JEAC Op. 10-36.  Similarly, we found no problem with a judge sitting where the judge’s spouse was a “child victim specialist,” so long as the spouse had no involvement in the particular case. 

But we said in the case where the judge’s spouse was a “child victim specialist” that the judge should disclose the circumstances “in cases involving allegations of sexual abuse to a child so that the defendant and the state can determine whether the judge’s spouse is, or will be, involved in the case.”  Fla. JEAC Op. 03-08.  Because the judge could not say with absolute assurance that the spouse had no involvement in such cases, disclosure was required.                               

Our supreme court has made clear “that different standards should govern disqualification and disclosure.”  See  In re Frank, 753 So. 2d 1228, 1239 (Fla. 2000).  The Frank court explained

that the standard for disclosure is lower. In other words, a judge should disclose information in circumstances even where disqualification may not be required. This view is supported by several decisions from other jurisdictions. See O'Neill v. Thibodeaux, 709 So.2d 962, 967-68 (La.Ct.App.1998) (finding that trial judge correctly disclosed that he occasionally played cards with one of the parties, even though the judge was not required to disqualify himself from presiding over the case on that basis); Collier v. Griffith, 1 No. 01-A-01-9109-CV00339, 1992 WL 44893 at *4-*5 (Tenn.Ct.App. March 11, 1992) (analyzing Comment to Canon 3 of the Code of Judicial Conduct and stating that “[g]iven the seminal importance of impartiality, both in fact and in appearance, we find that judges should disclose any information that the parties or their lawyers might consider relevant to the disqualification issue”).

To like effect, Comment [5] to Rule 2.11 of the Annotated Model Code of Judicial Conduct says a judge “should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification.”  (Emphasis supplied.)

Here, apart from outright reassignment of a criminal case, there is the possibility of co-defendants an assistant attorney like the judge’s child might prosecute in a separate case.  An assistant state attorney may also plea bargain with witnesses facing other charges altogether.  A new assistant may, moreover, be asked to cover first appearances, so representing the office at an early stage of a prosecution later turned over to another assistant.   

Because the inquiring judge’s child’s employment may entail the child’s having some involvement in a criminal case the judge is hearing -- an involvement of which the judge may well be wholly unaware -- the better practice is for the judge to disclose the fact that the judge’s child works for the state attorney’s office.  As was said in JEAC Opinion 07-16,

Even though disqualification is not required under the facts of this inquiry, the Judge should disclose to the parties the relationship that the [child] has with the [state attorney’s office]. 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 [child] as a law[yer] 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.

In sum, automatic disqualification is not required, but, if the child works for the state attorney’s office, all parties to criminal cases and their counsel should be so informed.

A minority of the Committee agrees that disqualification is not required solely because the child of a judge is employed by the state attorney’s office but does not agree that a bright line rule requiring disclosure is necessary. It would be more appropriate to advise the judge   that the judge should disclose the judge’s relationship if the judge believes that the parties or their  lawyers may consider the circumstances of the employment relevant to the issue of disqualification. This is consistent with the Commentary to Canon 3 E (1). The judge should be aware of any unique circumstance that may be relevant to the issue of disqualification. This Committee has just opined that the mere fact of employment, without more, is not sufficient for disqualification and, therefore, may not be relevant to the issue.

REFERENCES

ABA Annotated Model Code of Judicial Conduct: Comment [5] to Rule 2.11. 

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

Fla. Code Jud. Conduct, Canons 3E(1), 3E(1)(d)(ii), Commentary to Canon 3E(1).

Fla. JEAC Ops.:  11-21, 10-36, 08-06, 07-16, 06-26, 06-27, 03-08, 97-25.

_____________

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 which governs any proceeding over which the inquiring judge may preside. 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, Esquire, Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Jose Rodriguez, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and 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)