Whether a judge must recuse himself
in all cases where a party is represented by an
attorney employed by Legal Aid because
a family member of his family is employed
by Legal Aid
The inquiring judge is a circuit judge assigned to the family division. He hears many cases involving domestic violence and dissolution of marriage in which one party is represented by attorneys employed by Legal Aid. The inquiring judge's wife is an attorney employed by Legal Aid and works in the housing benefits section. She does not handle domestic violence or dissolution cases. The judge asks whether he must (1) recuse himself in all cases where a party is represented by an attorney employed by Legal Aid, or (2) inform the parties in such cases of his wife's employment and offer to recuse at the request of either party.
In a very recent Committee opinion 97-8, the committee identified and reviewed prior opinions involving legal employment by a judge's family member. In that opinion we observed, "the opinions indicate that the inquiring judge must disqualify himself on cases involving a law firm to which his wife is currently assigned." The wife in that case was a legal secretary working as a temporary and not an attorney. The opinions mentioned in 97-8, and in particular opinion 84-24, very strongly suggest that a judge is disqualified where the judge's spouse is an attorney with one of the law firms appearing in a given case. Canon 3E(1)(d)(ii) requires disqualification where the judge's spouse is acting as a lawyer in the proceeding. Although the Canon speaks to the individual lawyer, and not the entire law firm, committee opinions have extended the prohibition to the entire firm. See opinions 82-17, 84-24, 92-17. The question,then, is whether Legal Aid should be treated as a law firm for purposes of disqualification.
At a very early date this Committee took the position that employment by the public defender or state attorney was not the same as a law firm. Accordingly, in Opinion 77-4, the Committee determined that a judge would not be disqualified from sitting on cases handled by the public defender's office where the judge's brother was the chief assistant public defender in the juvenile division and was responsible for assigning the public defenders who would appear in juvenile division. In Opinion 77-12, the Committee relied upon Opinion 77-4 and found that a judge would not be disqualified from criminal cases where his brother was the administrative division chief for the state attorney's office. See also Opinion 76-12 (Appellate judge not disqualified in cases arising from Public Defender's office in which son is an assistant.)
The Committee has previously decided that the state attorney and public defender decisions should be controlling in a situation where the judge's spouse is an employee of the Legal Services Corporation. Accordingly, in Opinion 83-10, the Committee responded that a judge need not enter a disqualification in cases in which Legal Services Corporation represented a party, even though the spouse was employed by Legal Services. In the circumstances of Opinion 83-10, it appears that the spouse was employed by Legal Services in a non-advocate position. Accordingly, the question remains whether the spouse's employment as an attorney, albeit in a different division from those attorneys appearing before the inquiring judge, would make any difference.
In Opinion 97-6, this Committee considered a request by a judge to conduct fundraising on behalf of Legal Aid. In the course of answering the inquiry, the Committee stated that Legal Aid is "in the nature of a law firm that limits its representation to indigent clients." We went on to find that the fundraising was not permissible. We do not believe the statement about the nature of Legal Aid in the context of Opinion 97-6 is controlling as to the present inquiry. The basic problem in Opinion 97-6 is that the inquiring judge would have become a fundraiser for a corporation, Legal Aid, that would be frequently involved in litigation and adversary proceedings likely to come before the inquiring judge. This would not control the analysis for purposes of disqualification under Canon 3.
The out-of-state ethics opinions on this and analogous issues are not completely consistent. In Opinion 89-9, the Nebraska Ethics Advisory Commission decided that a judge would not be precluded from hearing cases involving a local legal aid agency where the judge's daughter would be doing pro bono work at the legal aid. The judge is disqualified in those cases in which the daughter is actually involved. In Oregon Opinion 80-2, however, the Judicial Conduct Committee found that a circuit judge whose son-in-law is a legal aid staff attorney may not hear cases where one of the parties is represented by another attorney in the legal aid office. Similarly, the Utah Ethics Advisory Committee, in Opinion 88-3, found that a judge whose spouse is an attorney for the Legal Defender's Association must disqualify himself in all cases where the spouse serves as an attorney, an in all cases where the Legal Defender's Association is the attorney and the spouse is still associated with that office. The Utah Committee reasoned that a person of ordinary prudence would find a reasonable basis for questioning the judge's impartiality. The Committee felt that the Legal Defender's Association attorneys share cases information and strategies among themselves, and thus the judge would be subject to an appearance of impropriety by virtue of the fact that the judge resides in the same household, shares income, and has privileged communications with the Legal Defender attorney.
Some other states have looked at the question of a spouse's employment by governmental agencies. The Indiana Committee, in Opinion 1-89, found a judge would not necessarily be disqualified where the judge's spouse or other close relative acts as a deputy city attorney or deputy prosecutor if the spouse or relative has not participated in the preparation of a particular case. The Committee reasoned that a spouse or relative in a governmental position does not have a substantial interest in the outcome of the proceeding as might be the case if the spouse were employed in a private law firm where law partners or associates who share good will, profits, and losses are engaged in one another's cases regardless of the identity of the attorney of record. The Alabama Judicial Inquiry Commission, in Opinion 80-90, found that a judge should not be precluded from presiding over criminal cases even thought the judge's son is an assistant district attorney because an assistant attorney has no conceivable financial interest in the outcome of those cases in which he does not participate. The New Mexico Judicial Advisory Committee, in Opinion 87-2, found that a judge is not required to enter a disqualification where the spouse is an attorney with a governmental agency and does not appear or participate in a case pending before the judge. Disqualification would only be called for where a reasonable person would deem the situation to be inappropriate. In Opinion 88-12, the Washington Ethics Advisory Committee decided that a judge whose spouse was an officer and board member of a nonprofit public defender agency could hear cases where an attorney representing a party is a member of the same agency. In New York, where the Office of the Court Administration issues advisory opinions, Opinion 88-101 found that a judge whose spouse is an assistant corporation counsel or an assistant district attorney is not disqualified from cases in which other corporation counsels or district attorneys appear. The New York opinion requires the judge to disclose the spouse's employment and withdraw from the case if requested to do so.
The Florida Committee has also looked at situations in which the judge's spouse was employed by governmental agencies frequently involved in litigation. In Opinion 94-3, the Committee found disqualification would not be required where the spouse was an employee of the Department of Environmental Regulation, and on occasion DER appeared before the inquiring judge, primarily through its marine patrol officers. In Opinions 90-23 and 93-51, however, the Committee suggested disqualification in dependency cases where the judge's spouse was an attorney or manager within the former Department Health and Rehabilitative Services (sic), working in the area of dependency and children's services.
The Committee views this question as extremely close as evidenced by the authority going both ways. Given Florida's historical view of employment by the state attorney or public defender, we find that employment of a spouse by Legal Aid should not automatically lead to disqualification. The Committee would also find that the judge should make disclosure in any case where the judge reasonably believes that any semblance of an impropriety might be perceived. Although not strictly required, disqualification would be prudent if the inquiring judge sees any reason to believe that his impartiality might be questioned.
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 issued by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, Opinion No. 90,133 (Fla. September 4, 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.
Dated the 5th day of October, 1997.
Charles J. Kahn, Jr.
Participation Members: Judges Dell, Green, C. Kahn, L. Kahn, Patterson, Rushing, Smith, Tolton and Attorney Novicki
cc: All Committee Members
Justice Charles T. Wells
Office of the State Courts Administrator (name of judge deleted from this copy)