FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-20
Date of Issue: November 13, 2017

ISSUES

1. Whether a judge shall be disqualified if an attorney from a law firm in which the judge’s brother-in-law is a partner appears as counsel in a case before the judge?

ANSWER: Yes, subject to remittitur.

2. May a judge enter an agreed-upon order submitted by the parties appointing the judge’s cousin as a mediator?

ANSWER: Yes, so long as selection of the cousin as a mediator is initiated by the parties.

3.Whether a judge shall be disqualified if the wife of the judge’s cousin appears before the judge.

ANSWER: No. Disqualification may be required, however, depending upon the relationship between the judge and the wife of the judge’s cousin.

4. Whether a judge shall be disqualified if the daughter of the judge’s cousin appears before the judge

ANSWER: No. Disqualification may be required, however, depending upon the relationship between the judge and daughter of the judge’s cousin.

5. Whether a judge must disclose the relationship when the wife or daughter of the judge’s cousin, or a member of their respective law firms, appears before the judge.

ANSWER: Yes.

FACTS

The inquiring judge will be assigned to the circuit civil division for the first time. The judge has several family members who are attorneys and who are in some way related to civil cases.

1. First is the judge’s brother-in-law, who is the husband of the sister of the inquiring judge’s wife. The brother-in-law is a partner at a private law firm. It is unlikely that the brother-in-law, a corporate attorney, will appear before the judge, but attorneys in the firm may appear in cases assigned to the judge.

2. The second is the inquiring judge’s cousin. The cousin is the son of the judge’s maternal grandfather’s sister. The cousin is an attorney who practices exclusively as a mediator.

3. The third is the wife of the cousin referenced in paragraph 2. The wife of the cousin is an attorney in private practice who is likely to appear in cases assigned to the judge.

4. The fourth is the daughter of the cousin referenced in paragraph 2. The daughter of the cousin is also an attorney in private practice who may appear in cases assigned to the judge.

 

DISCUSSION

ISSUE #1

Canon 3E(1)(d), Fla. Code Jud. Conduct, provides:

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 . . . 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.

The Code of Judicial Conduct defines a third degree of relationship as a “great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece.” Fla. Code Jud. Conduct, Definitions.

The Commentary to Canon 3E(1)(d) provides:

The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that ‘the judge’s impartiality might reasonably be questioned’ under Section 3E(1), or that the relative is known by the judge to have an interest in the law firm that could be ‘substantially affected by the outcome of the proceeding’ under Section 3E(1)(d)(iii) may require the judge’s disqualification.

The judge’s brother-in-law is a spouse of a person within the third degree of the spouse of the judge, so Canon 3E(1)(d) applies here. Canon 3E(1)(d) dictates that the judge shall be disqualified if the brother-in-law is a party to a proceeding (or officer, director, or trustee of a party), a lawyer in a proceeding, is known by the judge to have more than a de minimis interest which could be substantially affected by the proceeding, or to the judge’s knowledge is likely to be a material witness. See also § 38.02, Fla. Stats.

This Committee has consistently 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. 12-32, 06-26, 98-20 and 84-24. Consistent with the Commentary, in Florida Judicial Ethics Advisory Committee Opinion 07-16, we concluded that there should not be a “bright line” disqualification of a judge in all cases involving the employment of a judge’s relative (in any capacity) by a law firm appearing before the judge. Nevertheless, we reaffirmed our prior opinions that disqualification is required when a relative (or spouse of a relative) within the third degree is employed as a lawyer with a law firm that appears before the judge. We concluded that in such cases, the judge’s impartiality might reasonably be questioned.

Here, the brother-in-law at issue is not only a lawyer but a partner in the law firm. Canon 3E(1)(d)(iii) directs disqualification in all cases where a judge’s impartiality may reasonably be questioned, including cases in which a family member is known to have more than a de minimus interest. The Committee concludes that this would mandate disqualification from a case in which the brother-in-law is a partner in one of the law firms appearing before the judge. We believe that a partner in a law firm has more than a de minimus interest in any case in which an attorney from that firm appears, whether it be a matter of reputation, client satisfaction, or economics. Moreover, appearance by that firm before the judge would certainly give rise to a reasonable question regarding the judge’s impartiality.

The Committee notes, however, that the pursuant to Canon 3F the judge may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. See Fla. JEAC Op. 06-26. As a practical matter, a judge may wish to have all parties and their lawyers sign the remittal agreement even though the commentary indicates that parties may act through counsel if counsel represents on the record that the party has been consulted and consents. Id. at fn.1.

ISSUE #2

A cousin of the inquiring judge is a local attorney who practices exclusively as a mediator. The cousin is the son of the inquiring judge’s maternal grandfather’s sister.

The judge reports that the usual path to appointment of a mediator in a case in the judge’s circuit is controlled by the parties. The parties jointly agree on a mediator and then submit a proposed order to the court ordering mediation and naming the selected mediator. Occasionally the parties do not agree, lists are submitted and the court chooses one. In rare instances, the inquiring judge could appoint a mediator without any suggestions by the parties.

The inquiring judge asks if the following proposed plan of action is ethically appropriate:

1. Where the parties jointly select the mediator, if the parties’ selected mediator is the cousin, the inquiring judge would sign the order appointing him as the mediator. At the same time, the inquiring judge would also notify all counsel of the family relationship.

2. Where the parties submit lists and the cousin’s name is on one but not both lists, the inquiring judge would not appoint the cousin.

3. Where the Court must make its own appointment without input from the parties, the inquiring judge would not appoint the cousin.

The Committee concludes that the course of action proposed by the inquiring judge would not conflict with the Code of Judicial Conduct. Canon 3C(4) states in pertinent part that

A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism.

The Commentary to Canon 3C(4) provides that

Appointees of a judge include . . . mediators . . .. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by Section 3C(4). See also Fla. Stat. section 112.3135 (1991).

Canon 3C(4) is not narrowed to a particular group of relatives as are the disqualification requirements of Canon 3E. Canon 3E’s provisions do not mandate disqualification with respect to cousins on the mere basis of the familial relationship. See Fla. Code Jud. Conduct, Definitions; In re The Florida Bar - Code of Judicial Conduct, 281 So. 2d 21, 26 (Fla. 1973) (1973 version of the Commentary to Canon 3 provided that the third degree of relationship test “would not disqualify (the judge) if a cousin were a party or a lawyer in the proceeding.”); Fla. JEAC Ops. 04-06, 97-13.1

Because Canon 3C(4)’s provisions are not narrowed to a particular group of relatives, if the judge were to appoint his cousin as a mediator solely on the basis of the familial relationship, the Committee would recommend against it. In the circumstances described in paragraph 1 of the judge’s proposed plan, however, the Committee does not believe that appointment of the cousin suggests nepotism or favoritism. Rather, the judge would be simply allowing the parties to choose the mediator they mutually agreed upon. Indeed, the fact that the parties jointly selected the judge’s cousin would suggest that the appointment is being made on the basis of merit as opposed to nepotism, favoritism, or partiality. The Committee is of the opinion that the entry of an agreed-upon order submitted by the parties selecting the judge’s cousin as a mediator does not violate the Code.

We are mindful that the Commentary states that consent by the parties does not relieve the judge of the obligation to comply with section 3C(4). Thus, the Committee cautions that the judge should not suggest to the parties that the judge’s cousin be selected as a mediator with the hope that the parties agree. Rather, in order not to run afoul of the Code, any selection of the judge’s cousin as a mediator must be solely initiated by the parties, and simply approved by the judge.

Further, we believe that the procedure employed here for selection of a mediator distinguishes our opinions in Florida Judicial Ethics Advisory Committee Opinion 08-06 (advising against appointing a special master or receiver from a firm where the Judge’s adult child is employed as an associate attorney) and Florida Judicial Ethics Advisory Committee Opinion 82-13 (advising against appointing a relative to serve as a guardian ad litem, receiver or a master). The Committee acknowledges however that the facts presented in Florida Judicial Ethics Advisory Committee Opinion 82-13 are not sufficiently developed to allow for a clear analysis.

Finally, we believe that the judge’s plan to disclose the relationship at the time of entering the appointment order is appropriate and prudent. See Fla. JEAC Op. 04-06 (advising that disclosure is required when the judge’s cousin or a member of the cousin’s firm appears before the judge). We recommend that the judge also advise the parties that if, in light of the disclosure, either side prefers to choose another mediator, the parties should submit an amended agreed order naming a different mediator. If they cannot agree on a different mediator the judge should proceed as outlined in paragraphs 2 and 3 of the judge’s plan.

ISSUES #3, #4, #5

The wife and the daughter of the inquiring judge’s cousin in issue #2 (maternal grandfather’s sister’s son) are both attorneys in private practice who likely will or may be appearing in the circuit’s civil division. The inquiring judge would like to confirm that these relatives are not within the third degree of relationship as defined by the Code. The judge would also like to know whether it is appropriate to disclose the family relationship when the cousin’s wife or daughter, or any member of their respective firms, appears before the judge.

Canon 3E(1)(d)(ii), Fla. Code Jud. Conduct, provides that a judge shall be disqualified if a person within the third degree of relationship is acting as a lawyer in the proceeding. The definition of “third degree of relationship” contained in the Code does not include “cousin.” Fla. Code Jud. Conduct, Definitions; see Fla. JEAC Ops. 04-06, 97-13. As a result, neither the wife nor the daughter of the cousin is a relative of the third degree, and 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. Because disqualification is not mandated by 3E(1)(d)(ii), it is controlled by the nature of the relationship. The inquiring judge must examine the personal relationship with the wife and with the daughter of the cousin to determine whether or not disqualification is required on the basis that the judge’s impartiality may reasonably be questioned. Canon 3E.

Every family relationship is different. In the case of the wife or the daughter of the cousin, if a close familial tie exists, the judge’s impartiality might reasonably be questioned and disqualification would be required. On the other hand, if the judge does not have a close familial relationship with either the wife or the daughter of the cousin, disqualification would not be required. See Fla. JEAC Ops. 12-32, 97-13.

Even if the judge determines that there is no basis for disqualification, a disclosure of the relationship should be made. 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.

See Fla. JEAC Op. 04-06 (advising disclosure when cousins or members of their firms appear before the judge). Accordingly, the Committee agrees with the judge’s proposed plan to disclose this information whenever a member of the cousin’s wife or daughter’s law firm appears before the judge.

 

REFERENCES

Sections 38.02 & 112.3135, Fla. Stats.

In re The Florida Bar - Code of Judicial Conduct, 281 So. 2d 21, 26 (Fla. 1973).

Fla. Code Jud. Conduct, Canons 3C(4), 3E(1)(d)(i-iv), 3F.

Fla. JEAC Ops. 12-32, 08-06, 07-16, 06-26, 04-06, 98-20, 97-13, 84-24, 82-13.

_____________


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 Miguel de la O, Chair, Judicial Ethics Advisory Committee, Eleventh Circuit, Richard E. Gerstein Justice Building, 1351 N.W. 12th Street, Room 424, Miami, FL 33125.

Participating Members:
Judge Michael F. Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, 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, and 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

 

1. The Committee also notes that section 112.3135, Fla. Stats. (1991) (Florida’s anti-nepotism statute) includes “first cousin” in the definition of “relative” but does not expressly include any other type of cousin, such as “first cousin once removed.”  In keeping with its authority and protocol, the Committee expresses no view on whether any proposed conduct of the inquiring judge violates section 112.3135. The Committee has authority to interpret only the Code of Judicial Conduct, and therefore its opinions deal only with whether the proposed conduct violates a provision of that Code.