SUBJECT: What action should a judge take when a member of his family
works for a temporary employment agency that from time to time assigns
that person to various law firms in various capacities.Canon 3
The wife of the inquiring judge has made herself "available to several temporary employment agencies." From time to time the inquiring judge's wife is offered temporary assignments to various law firms. Some of these firms may have cases pending in the inquiring judge's division. Should the inquiring judge be confronted with "any cases involving any of the firms that she has been on assignment to," his plan is to "make full disclosure." The inquiring judge points out at some length that his wife is never employed directly by the law firm, but is rather employed by the temporary employment agency, or is working as an independent contractor. Her income is received from the temporary employment agency, and her contract with any of the firms is of short duration, generally less than four weeks. Obviously, in this position, the judge's wife will not have a financial stake in the outcome of any of the various firms' cases.
The inquiring judge has posed three questions for the Committee:
1.If a case comes before the judge involving a law firm to which his wife is currently assigned, what action should he take?
2.If a case comes before the judge involving a firm to which his wife has had a prior assignment, although she is not currently assigned there, what action should he take.
3.Should action be taken in any of these situations only on cases in which she has had involvement in a secretarial capacity or would it apply to all matters handled in the judge's court by the particular law firm involved.
As a first step in the analysis, the Committee discounts the significance of the employment of the wife by a temporary agency. While this factor might be important in an issue such as workers' compensation or tort liability, it is not germane to the judge's ethical decision. For purposes of judicial ethics, the wife's assignment by a temporary employment agency to a law firm is tantamount to her being employed by the law firm. In this capacity, and for the purposes of these inquiries, the Committee must assume that the wife has access to correspondence, files and other communication involving the firm and its clients.
Canon 3E of the 1994 Code of Judicial Conduct, which is Canon 3C of the old Code, provides that a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. Several particular instances requiring disqualification are then enumerated; however, the Canon notes that the requirement to disqualify includes, but is not limited to, these specific instances. Canon 3F, formerly, Canon 3D, provides that a judge disqualified by the terms of 3E may disclose on the record the basis for the disqualification and may then ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. This procedure is know as remittal of disqualification and allows the parties to waive the disqualification in order that they might have the opportunity to proceed without delay. See Commentary to Canon 3F.
The Committee on Standards of Conduct Governing Judges has, on many occasions, considered question involving legal employment by a judge's family member. See Opinions 76-12, 77-4, 77-12, 78-20, 79-7, 81-1, 82-17, 84-24, 85-2, 89-17, 92-8, 92-17. These opinions have moved steadily in the direction of a fairly broad rule of disqualification.
In Opinion 81-1, the Committee overruled an earlier Committee opinion, 78-20, and found that a judge must disqualify himself in cases involving the law firm in which his wife was working as a secretary. The opinion noted that under these circumstances, the local bar as well as the public will sense favoritism in everything from the scheduling of hearings for the employer law firm to the judge's rulings in the law firm's cases. Accordingly, the judge should disqualify without regard to actual impartiality.
In Opinion 82-17, the Committee stated, "there is no substantive difference between a partner of the firm, an associate of the firm, or one who is employed by the firm." Accordingly, in Opinion 84-24, the Committee found that a judge should not sit on any case involving the law firm in which one of the judge's nephews was a partner, and another nephew was an associate. This opinion went on to state that "disqualification should be the standard procedure unless the parties, when notified of their relationship, enter a remittal of disqualification as provided in Canon 3D" (now 3F).
The view of mandatory disqualification, with the option to allow the parties to remit the disqualification, has continued to be followed by the Committee. A possible exception appears in Opinion 92-8. In that case, the facts disclose that a judge's wife worked for a law firm that practiced before the judge. The opinion does not disclose in what capacity the wife worked, although it does not appear that she worked as an attorney. On these facts, the Committee, in reliance upon Opinion 81-1 found disqualification was required: [T]he sense of favoritism obviously entering into and coloring all the judge's activities offers no alternative by disqualification." The use of the phrase "no alternative" suggests that on these fact the parties would not be allowed to follow the remittal of disqualification procedure of Canon 3. Nevertheless, in Opinion 92-17, releases shortly after 92-8, the Committee found, in an inquiring (sic) involving the judge's sibling's law firm, that the disqualification is required, unless the parties enter a remittal of disqualification.
Based upon these opinions construing Canon 3, we may now safely conclude that the employment of a judge's spouse as a legal secretary places the judge in a position of disqualification as to any and all cases involving the employer law firm; however, the opinions do leave open the option of remittal of disqualification pursuant to present Canon 3. The inquiry now before us has a new twist, in that the spouse works for numerous law firms on an intermittent basis.
As to question 1, the opinions indicate that the inquiring judge must disqualify himself on cases involving a law firm to which his wife is currently assigned. In these cases, he may follow the remittal of disqualification procedure of Canon 3F. As to cases involving a law firm to which the spouse had a prior assignment, a rule of reason should apply. In all such cases, the judge should make disclosure as to his wife;s prior assignment. In case of a temporally close assignment, such as within the last six months, the Committee advises that the judge must follow the mandatory disqualification rule.
As to the third question, the need to disqualify or disclose would apply to all matters handled by the particular law firm, and not just those matters in which the spouse had been involved. This is consistent with the opinions of this Committee that focus not upon the relative's actual involvement in the pending case, but rather, upon the relative's employment with the law firm.
It would appear that if the inquiring judge's spouse has numerous assignments over a relatively brief period of time, the disqualification/remittal procedure may become quite burdensome. It may also lead to unnecessary and confusing delays in the handling of cases. Accordingly, unless the inquiring judge is confident that he will be able to keep a very accurate and current record of his wife's legal employers, the Committee suggests that he advise his wife that she might consider not accepting assignments to law firms. Of course, in the alternative, she could work for one law firm exclusively, and this would place the judge in the position of simply having to follow the procedure as to that law firms's cases.
Two members of the Committee suggest that the ethical burden to disclose employment rests not only with the judge, but with the attorneys utilizing the wife's services as well.
The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).
Dated the 20th day of March, 1997.
Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges
Participation Members: Judges Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Smith, Tolton and Attorney Novicki
cc: All Committee Members
Office of the State Courts Administrator (name of judge deleted from this copy)