Opinion Number: 98-20
Date of Issue: September 16, 1998
JUDGE'S RECUSAL WHEN DAUGHTER ATTORNEY OF RECORD; RECUSAL OF LAW FIRM EMPLOYING DAUGHTER; COLLECTION OF ATTORNEY'S FEES IN A CASE HANDLED BEFORE BECOMING A JUDGE.
Must a judge recuse himself in cases where his daughter is attorney of record? ANSWER: Yes, a judge must recuse when his daughter is attorney of record.
Should a judge recuse himself in cases involving the law firm where his daughter is employed? ANSWER: Yes, a judge should recuse himself in cases involving the law firm where his daughter is employed, unless all parties agree to a remittal of disqualification.
Whether a judge may collect a fee in a contingency case, when the fee was earned prior to assuming the bench? ANSWER: Yes.
The inquiring party was recently appointed to the bench. He would like to know if he must recuse himself in all cases where his daughter is attorney of record, and if he must recuse himself in all cases where the law firm employing his daughter is attorney of record. Furthermore, he asks if there are any guidelines governing his participation in fees from a contingency case he handled before assuming the bench.
The Code of Judicial Conduct disqualifies a judge from presiding over cases
where his daughter is attorney of record. Canon 3(E)(1)(d)(ii) directs a judge
to recuse himself or herself where a person within the third degree of relationship
to the judge is acting as a lawyer in the proceeding. The judge's daughter would
fall into this category. Previous Committee opinions have held a judge must
recuse in cases where a spouse was attorney of record. See Opinion
78-20 and Opinion 81-1, which partially
receded from Opinion 78-20. See also §38.02,
Fla. Stat. (1997), which provides for disqualification when the person involved
is related to the judge by consanguinity or affinity within the third degree,
a designation which includes children.
The judge should recuse himself in cases involving the law firm employing his daughter. Canon 3(E)(1)(c) directs recusal in all cases where a judge's child has an economic interest, which would apply to the daughter's association with the law firm appearing before the judge. The Commentary to Canon 3E(1)(d) does not require automatic disqualification where the child 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." However, Opinion 85-2 followed Opinion 84-24 and recommended that disqualification should be the standard procedure unless the parties, when notified of the relationship, enter a remittal of disqualification as provided in Canon 3F. Opinion 92-8 also found a judge should disqualify himself in all cases involving the law firm for which his wife worked. The Committee felt the sense of favoritism obviously entering into and coloring all the judge's activities offered no alternative but disqualification. In Opinion 81-1, one of the members of the Committee noted a judge should avoid remaining on a case in which a family member was associated with a firm appearing in a matter before the judge, stating: "It is ill advised and should be avoided. The local bar, as well as the public, will sense favoritism in everything from the scheduling of hearings for (the secretary's) employer to the judge's rulings in his cases."
The Committee has previously held that a judge may collect a fee earned prior to assuming the bench, as long as the computation is based on traditional standards. Opinion 97-9. As long as the fee is calculated based upon legal services the judge performed prior to assuming the bench, and the requirements of the Florida Bar Rules of Professional Conduct are satisfied, the judge may collect the fee when the case ends. See also Opinion 94-7, Opinion 91-8 and Opinion 76-1.
§38.02, Fla. Stat. (1997).
Florida Judicial Ethics Advisory Committee Opinions : 78-20; 81-1; 85-2; 84-24; 91-8; 92-8; 97-9; 94-7; 76-1.
Florida Code of Judicial Conduct; Canons 3; 3(E)(1)(d)(ii); 3(E)(1)(c); 3(F).
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 by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 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.
For further information, contact The Honorable Lisa D. Kahn, Chair, Judicial Ethics Advisory Committee, Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.
Participating Members: Judges, C. Kahn, L. Kahn Patterson, Rodriquez, Rushing, Smith, Swartz, Tolton,
Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)