FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-03
Date of Issue: March 2, 2017

ISSUES

1. Whether a judge must disclose that a lawyer appearing before the judge has referred a case to the judge’s spouse, a lawyer, and who may have shared, or will share, a fee with the referring lawyer.

ANSWER: Yes.

2. If the judge discloses the spouse’s business relationship with the attorney, is recusal automatically required?

ANSWER: No.

FACTS

The inquiring judge serves in the criminal division and is married to a lawyer who practices civil law. Occasionally, and without the inquiring judge’s knowledge, the judge’s spouse receives referrals from lawyers who appear before the judge. These lawyers may refer other cases in the future to the judge’s spouse. As a result of these referrals, the judge’s spouse provides a referral fee to the referring lawyers.

 

DISCUSSION

The inquiring judge asks whether these referral fee relationships with the judge’s spouse create any ethical obligations on the judge’s part, and whether the judge should become aware of “any financial arrangement [the] spouse may have with other attorneys?” The answer to the second question is contained in Canon 3E(2), which expressly obligates a judge to “make a reasonable effort to keep informed about the economic interests of the judge’s spouse.”

The inquiring judge’s first question raises two distinct and separate issues: disclosure and recusal. The commentary to the Florida Code of Judicial Conduct, Canon 3E(1) provides that “[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.”  See Fla. JEAC Op. 01-17 (“This disclosure of 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.”); see also In re Frank, 753 So. 2d 1228, 1239 (Fla. 2000) (“[T]he standard for disclosure is lower. In other words, a judge should disclose information in circumstances even where disqualification may not be required.”).

In Florida Judicial Ethics Advisory Committee Opinion 05-06, we addressed whether disclosure was required where the judge’s spouse had a business relationship with an attorney whose firm occasionally appeared before the judge. The business relationship was wholly unrelated to the practice of law. Nevertheless, we concluded that the judge should disclose the business relationship because of a concern - however debatable - that someone might have “a perception that the attorney could retaliate against the spouse’s business as a result of adverse rulings by the judge, or that the judge would lean in the attorney’s favor to prevent this from happening.” Id. Importantly, we reached this conclusion despite the fact it was indisputable that the success of the attorney’s practice and side business was unconnected to the attorney’s relationship with the judge’s spouse, and vice-versa.

Here, the potential impact to the judge’s spouse – both positive and negative - from decisions made by lawyers who appear before the inquiring judge are more direct and real. There is a legitimate concern that lawyers who appear before the inquiring judge could believe that by sending more referrals to the judge’s spouse the lawyers will curry favor with the judge; alternatively, the same lawyers could express their displeasure with the judge’s rulings by stopping the flow of referrals to the judge’s spouse. Therefore, disclosure is clearly required in this situation.

However, as we concluded in 05-06, “[i]f the judge opts for disclosure of the relationship, recusal need not automatically follow.” Canon 3 provides: “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 test is whether a disinterested person aware of the relevant facts would reasonably question the judge’s impartiality.” Fla. JEAC Op. 92-39.

This is not a case where the judge’s spouse is employed by the law firm. See Fla. Code of Jud. Conduct, Canon 3E(1)(d). The relationship of a lawyer referring a matter to another lawyer is a business relationship, but it is not an employment relationship. Unless the judge’s spouse “is known by the judge to have more than a de minimus interest that could be substantially affected by the proceeding,” the inquiring judge does not have to automatically recuse from cases where a referring lawyer appears. Fla. JEAC Op. 05-06 (footnote omitted). However, if, after disclosure, a party moves to recuse the inquiring judge, “the Judge should carefully consider whether the motion is legally sufficient and rule on the motion as a matter of law.”  Fla. JEAC Op. 07-16.

 

REFERENCES

In re Frank, 753 So. 2d 1228 (Fla. 2000).
Fla. Code of Jud. Conduct, Canon 3E(1), 3E(2)
Fla. JEAC Ops. 07-16, 05-06, 01-17, 92-39

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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 to 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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Spencer D. Levine, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Blvd., West Palm Beach, FL 33401

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Lisa Davidson, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator