FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

AMENDED 1 Opinion Number: 99-25
Date of Issue: October 26, 1999

WHETHER A JUDGE WHOSE SPOUSE IS CURRENTLY REPRESENTED BY AN ATTORNEY MUST RECUSE HIMSELF/HERSELF WHENEVER A MEMBER OF THE ATTORNEY'S LAW FIRM APPEAR BEFORE THE JUDGE?

ISSUE

Whether a judge whose spouse is currently represented by an attorney must recuse himself/herself whenever members of the attorney's firm appear before the judge on contested or uncontested matters, whether or not recusal is requested?"
ANSWER: The judge must automatically recuse himself/herself, even if the parties do not request recusal.

FACTS

The inquiring judge's spouse is currently represented by a law firm in a civil matter which at this time remains unfiled. The possibility exists that the judge will be added as a party if the action if filed. The judge asks whether he/she must disqualify himself/herself in all pending and future matters when a member of the law firm appears before him/her.

DISCUSSION

Canon 3E(1) states that "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned ..." The Commentary to Canon 3E(1) states that "a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Canon 3E(1) apply."

When read in conjunction with Canon 2A, which states "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary," it seems clear that the inquiring judge must disqualify himself/herself when an attorney, who is a member of the firm representing his spouse appears before him/her.

The Commentary to Canon 2 notes that, "The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." A judge presiding over an action, wherein an attorney appears from the firm who represents the judge's spouse creates such an appearance of impropriety.

This Committee recently issued Opinion 99-13 wherein the Committee stated that "it would be hard to imagine that litigants, even in uncontested matters, would not be distrustful of the impartiality of a judge in a matter in which a law firm presently representing the judge was the firm of record in a matter before the judge." Based on the marital relationship between the judge and his/her spouse, it is equally hard to imagine that litigants would not be distrustful of the judge's impartiality in a matter involving a law firm who is representing the judge's spouse.

In conclusion, the inquiring judge should automatically recuse himself/herself when an attorney who is a member of the firm representing the judge's spouse appears before him/her. The judge should consider requesting an administrative order recusing himself/herself from such cases.

REFERENCES

Florida Code of Judicial Conduct Canon 2; Canon 3E(1); Commentary to Canon 2; and Commentary to Canon 3E(1).

Florida Judicial Ethics Advisory Committee Opinions: 99-13.

In re Code of Judicial Conduct, 659 So. 2d 692 (Fla. 1995).

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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 C. McFerrin Smith, III, Chairman, Judicial Ethics Advisory Committee, 130 West New York Avenue, DeLand, Florida 32720 .

Participating Members: Blanton, Attorney at Law, Judges Cardonne, C. Kahn, L. Kahn, Silverman, Smith, and Thompson.

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)

1The sole change to this opinion is the addition of the names of the participating members