FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-22
Date of Issue: September 12, 2018

ISSUE

Do the Canons of Judicial Ethics require that a judge automatically recuse or disqualify himself/herself without request when a close relative and that relative’s company are represented by a law firm whose lawyers have unrelated cases pending before the judge.

ANSWER: No.

FACTS

The inquiring judge’s spouse owns a construction company that is represented by a large law firm with many departments. The firm currently has cases pending before the inquiring judge; however, none of the lawyers representing the company and the judge’s spouse appears before the inquiring judge. The inquiring judge is aware that disclosure of the firm’s relationship with the judge’s spouse is required. What the judge is unsure of is whether there is a bright line rule requiring automatic disqualification.

 

DISCUSSION

On many occasions this committee has recommended that judges disclose relationships that might call into question their ability to act impartially and without bias. However, there have been only a few circumstances where we have suggested that disqualification is automatically required as a bright line rule. For example, we have opined that a judge who draws an opponent should automatically disqualify himself or herself in cases that directly involve that opponent. Fla. JEAC Op. 84-12. We have said that a sitting judge who intends to seek re-election should automatically disqualify from presiding over cases in which the law partner of an attorney who has qualified to run against the judge. Fla. JEAC Op. 11-08. We have opined that automatic disqualification is appropriate in all cases involving a law firm that currently represents the judge. Fla. JEAC Op. 99-13. Finally, this Committee has consistently opined that disqualification is automatically required in any case involving a law firm if a close family member is a lawyer with that firm. See Fla. JEAC Ops. 17-20, 12-32, 06-26, 98-20 and 84-24.

For a time, this committee was of the opinion that almost any employment of a relative by a law firm was a basis for the automatic disqualification of the judge.1 We later recognized that a bright line rule requiring automatic disqualifications in “all cases involving the employment of a judge’s relative by a law firm” was misplaced and we receded from that position. Fla. JEAC Op. 07-16. We acknowledged that our prior opinions disregarded the Commentary to Canon 3E(1)(d) which states:

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.

Instead, we concluded that “issues of disqualification involving law firms employing relatives of a judge should be resolved on a case-by-case basis with careful consideration given to the relationship between the relative and the law firm.” Fla. JEAC Op. 07-16.

The issue presented here does not involve the relative of a judge working as an employee of a law firm that has cases pending before the judge. Nor does it involve a firm that controls the income and financial interest of that relative. Here, the judge’s spouse is the employer and the law firm is the employee. The positions of power are reversed and the risk of the relative’s “interest in the law firm [being] substantially affected by the outcome” of any proceeding pending before the judge is either de minimus or nonexistent. See Canon 3E(1)(d). Instead, the incentive to make sure the firm does well for the client rests with the employee/law firm and not with the employer/client or the judge’s spouse of the employer/client.

In Fla. JEAC Op. 17-03 the inquiring judge presided in criminal court. The judge’s spouse was an attorney who had a civil practice and who, from time to time, received referrals from lawyers who appeared before the judge. The judge wanted to know if disqualification was automatically required from any case of any lawyer who had referred a case to the judge’s spouse. We opined that the judge was not required to disqualify. We reasoned that this was not a circumstance where the judge’s impartiality might reasonably be questioned because the spouse’s relationship with the referring attorneys was a “business relationship.” Id. We acknowledged the potential for retaliation against the judge’s spouse by refusing to refer business and the incentive for the judge to “lean in favor” of the referring attorneys to prevent retaliation. Id. None-the-less we concluded that although disclosure was required recusal need not automatically follow.” Id.

In Fla. JEAC Op. 05-06 the judge’s spouse owned an “S Corporation” chartering sailboats. The boats were docked at a marina owned by a local attorney. The attorney’s associates occasionally appear before the judge. The judge had no individual interest in the corporation and did not participate in corporate decisions. The judge inquired as to whether automatic disqualification was required in all cases handled by lawyers in the firm. We answered that question in the negative. We found that the success of the attorney’s practice “was immaterial” to the business relationship between the attorney and the spouse. Id. We concluded that if “there is any basis for concern, it stems from 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. We counseled the inquiring judge that in analyzing whether he or she should choose to disqualify, the judge should consider the significance of the business relationship. That consideration includes:

[The] length of time the business relationship has existed, whether the relationship is one of unusual value to the judge’s spouse, whether the attorney takes an active role in the business, whether and how frequently the attorney has face-to-face dealings with the spouse, and whether the attorney and the spouse (as well as the judge) share other professional or personal relationships.

We left it up to the inquiring judge to determine whether disqualification was appropriate even though it was not automatically required.

Finally, in Sands Pointe Ocean Beach Resort Condo. Ass'n, Inc. v. Aelion, 43 Fla. L. Weekly D1283 (Fla. 3d DCA June 6, 2018) a member of a large law firm declared his candidacy to unseat a sitting judge. The firm had as many as twenty-six cases pending before the judge though none of the cases were being handled by the candidate for office. The firm sought to disqualify the judge from all of the cases pending before the court arguing that disqualification was required due to the “‘inherent prejudice or bias by the Incumbent Judge against the movant represented by the Law Firm and the Law Firm itself.” Id. at 2. The judge denied the motion to disqualify and the firm and its clients sought relief in the appellate courts. The appellate court affirmed the trial court’s denial of the motion to disqualify. Among the reason for denying the petition for certiorari, the Third District observed that the “law presumes ‘that a judge will remain impartial . . .” Id. at. 3. See also State ex rel. Aguiar v. Chappell, 344 So. 2d 925, 926 (Fla. 3d DCA 1977) (“[T]he impartiality of the trial judge must be beyond question, for justice presumes an impartial judge.”). The court stated that “a motion to disqualify will not be legally sufficient unless the movant overcomes the presumption of impartiality.” The court rejected the argument that “inherent prejudice” existed based solely upon an “attorney’s mere association” with a candidate employed by a statewide law firm. Sands Pointe at 3. More was required to overcome the presumption of impartiality and require disqualification. We do not believe that the mere association of a judge’s spouse with a law firm by employing that firm to handle business matters unrelated to any proceeding pending before the judge defeats the presumption of impartiality. Automatic disqualification from all unrelated cases involving that firm is not required.

In opining here that the inquiring judge is not required to automatically disqualify himself or herself based upon the facts presented here, we do not mean to suggest that the judge is not required to, or should not consider a properly filed Motion to Disqualify on the merits. Canon 3E(1) of the Florida Code of Judicial Conduct states that a judge should disqualify himself or herself in a proceeding “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer or personal knowledge of disputed evidentiary facts concerning the proceeding.”

 

REFERENCES

Sands Pointe Ocean Beach Resort Condo. Ass'n, Inc. v. Aelion, 43 Fla. L. Weekly D1283 (Fla. 3d DCA June 6, 2018)
State ex rel. Aguiar v. Chappell, 344 So. 2d 925, 926 (Fla. 3d DCA 1977)
Fla. Code Jud. Conduct, Canon 3E(1), 3E(1)(a), 3E(1)(d), 3E(1)(d)(iii)
JEAC Op. 82-17, 84-12, 84-24, 92-8, 98-20, 99-13, 03-18, 05-06, 06-26, 07-14, 07-16, 11-08, 12-32, 17-03, 17-20

_____________


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 James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Election Subcommittee Members:
Judge Roberto Arias, Judge Barbara Lagoa, Mark Herron, Esquire, and Judge Michael Raiden.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Michael Raiden, and Charles Reynolds, Esquire.


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. See Fla. JEAC Op. 07-14 (automatic disqualification required where a judge’s spouse is employed by a law firm as a paralegal); Fla. JEAC Opinion 82-17 (automatic disqualification where judge’s son, who was not yet a member of the Florida Bar, was working with a law firm); Fla. JEAC Op. 92-8 that required disqualification in cases involving a law firm in which the wife works no matter what the capacity the wife worked in because of the “sense of favoritism obviously entering into and coloring all the judge's activities”); Fla. JEAC Op. 03-18 (requiring disqualification in cases involving a law firm employing the judge’s niece, a second-year law student, as a summer intern).