FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2012-32
Date of Issue: October 11, 2012
1. If a judge’s stepniece is employed as an attorney with the Public Defender’s Office, is the judge’s disqualification required in all criminal cases in which a public defender is involved?
2. If a judge’s stepniece appears before the judge, is the judge per se disqualified pursuant to Canon 3E, Code of Judicial Conduct?
ANSWER: No. Disqualification may be required, however, depending upon the relationship between the judge and the stepniece.
3. Should the judge disclose that the judge’s stepniece is appearing before the judge as an attorney in a criminal case?
The inquiring judge currently presides over a criminal division, and attorneys with the Public Defender’s Office regularly appear before the judge. When the judge was a child, the judge’s mother remarried a person who, by a previous marriage, had a child (stepsister to the judge). The stepsister never lived with the judge, and the stepsister has a child (stepniece to the judge). The judge’s stepniece just passed the bar and is an attorney with the Public Defender’s Office. The inquiring judge has not advised this Committee of how close of a relationship the judge has with the stepniece. The judge’s stepfather is deceased.
This Committee consistently has opined that disqualification is required in any case involving a law firm if a close family member is a lawyer with that firm. Fla. JEAC Ops. 97-8 and 84-24. However, this Committee also has opined that employment by the Public Defender’s Office and the State Attorney’s Office is not the same as employment with a law firm. Fla. JEAC Ops. 11-21, 08-06, and 97-25. Unless the judge’s family member is the elected Public Defender, the elected State Attorney, or has supervisory authority over lawyers appearing before the judge, disqualification is not required. Fla. JEAC Ops. 11-21 and 10-09. Therefore, as to the first issue, the relationship between the inquiring judge and the stepniece is irrelevant since the stepniece is not the elected Public Defender nor is the stepniece supervising attorneys appearing before the judge.
Canon 3E(1)(d)(ii), Code of Judicial Conduct, provides that a judge is disqualified if a person within the third degree of relationship is acting as a lawyer in the proceeding. A “third degree of relationship” is defined within the “Definitions” section of the Code of Judicial Conduct as follows:
The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece.
Although the inquiring judge may have a familial relationship with the stepniece, the judge is not within the “third degree of relationship” as that term is defined in the Code. Therefore, disqualification is not required solely because of the proscription set forth in Canon 3E(1)(d)(ii). Disqualification may be required, however, depending upon whether a close familial relationship exists between the judge and the stepniece.
In today’s society, blended families, such as the judge’s family, are not uncommon. The relationships between the family members are as varied as the families themselves. For example, in one family a stepsibling may in all respects be treated as a sibling of natural born children and in other families a stepsibling may associate very little with the natural born children. Likewise, a stepniece may be as close to a stepaunt or stepuncle as a natural born niece, and may be as distant as the child of a friend. Every relationship is different, and whether or not disqualification is required depends upon the relationship, not the title, since the title “stepniece” does not, in and of itself, require disqualification.
The inquiring judge will have to examine the personal relationship between the judge and the stepniece and determine whether or not disqualification is required under Canon 3(E). If the judge and the stepniece have a close familial relationship, the judge’s impartiality might reasonably be questioned, and disqualification would be required. However, if the judge does not have a close familial relationship with the stepniece, disqualification would not be required.
Because the relationship between the inquiring judge and stepniece is relevant to the issue of disqualification, disclosure would be appropriate, even if the judge believes there is no real basis for disqualification. This concept is set forth in the Commentary to Canon 3(E):
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.
Therefore, if the inquiring judge has a close familial relationship with the stepniece, the judge is disqualified and should enter an order of recusal in all cases in which the stepniece personally appears before the judge or in cases in which the stepniece has supervisory authority over lawyers appearing before the judge. Better yet, the judge should request that the stepniece be assigned to a different division, if there is more than one criminal division in the circuit. However, if the judge does not have a close familial relationship with the stepniece, the judge does not have to be disqualified, but should disclose the relationship to the parties and their lawyers.
Fla. Code Jud. Conduct, Canon 3(E).
Fla. JEAC Ops. 11-21, 10-09, 08-06, 97-25, 97-8, 84-24.
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 the Committee Chair: Judge Jonathan D. Gerber, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michelle T. Morley, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.
Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.