February 14, 1985
Opinion No. 85/2
Canons 3C(1), 3D
The Committee appreciates your submission of the opinion in United States ex rel. Weinberger v. Equifax, Inc., 557 F. 2d 456 (1977), and your patience while we have deliberated on this inquiry.
Your inquiry is whether you should be disqualified in cases involving a law firm once your son, an attorney, becomes an associate of that firm. The Committee members responding are unanimously of the view that our prior Opinion 84/24 is determinative of this inquiry, and we recommend that you disqualify yourself under Canon 3C(1) unless the parties, when notified of the relationship enter a remittal of disqualification as provided by Canon 3D.
Opinion 84/24 points out that the commentary following Florida's Canon 3 does not require automatic disqualification in such cases where the son or other relative is not an actual participant in the case but leaves it to the judge to determine "whether his impartiality might reasonably be questioned and the extent of the interest in the law firm by the relative." The Committee in 84/24 did recommend, however, that disqualification be a standard procedure unless the parties, when notified of the relationship, entered a remittal of disqualification as provided in Canon 3D.
With regard to the federal authority cited, the Committee notes that Title 28, Section 455(e), United States Code, specifically does not allow the parties to waive a ground for disqualification under the pertinent subsection where a son would have an interest that could be substantially affected by the outcome. The federal procedure thus requires that a judge determine the substantial or insubstantial nature of the son's interest and, if the former, no waiver by the parties is permitted. The Florida procedure differs, under Canon 3D, in that the parties, when notified of the relationship, can waive it and thereby preclude any issue of judicial bias in the case. This procedure allows the judge to have the issue of disqualification resolved prior to trial through disclosure to the parties and avoids appeals such as Equifax on the question of judicial bias.
Although the Florida Code does not require automatic disqualification where a son is an associate of the firm but not a participant in the proceedings before the judge, one member of the Committee is unanimously of the view that, at the least, Canon 3D be followed, the relationship disclosed, and recusal offered. Finally, the observation is made that neither the judge, attorneys, or litigants should be required to try the case under circumstances where the bias or interest of the judge could be questioned and, further, that it is unnecessary that a judge subject himself to this type of difficult situation in view of the availability of other judges and numerous other cases to be tried.
The Committee appreciates your inquiry and hopes that this response is of assistance to you.
Anne C. Booth, Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Participating members: Judges Booth, Dell, Turner, Tedder,
Green, Grube and Letts
All reference to the inquiring judge is deleted from the copies sent to the following individuals.
Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Kathleen T. Phillips, Esq., Chairman, Judicial Qualifications Commission.
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida