FLORIDA SUPREME COURT
JUDICIAL ETHICS ADVISORY COMMITTEE
Opinion Number: 2001-08
Date of Issue: May 15, 2001
WHETHER IT IS IMPROPER FOR THE INQUIRING JUDGE TO PRESIDE OVER CASES WHERE
THE COURT REPORTER IS AN EMPLOYEE OF A COURT REPORTING SERVICE OWNED BY THE
ANSWER: No. So long as the inquiring judge isolates himself from the decision leading to the wife's employment as the contract court reporter, no ethical impropriety exists with her employees reporting cases assigned to the inquiring judge.
WHETHER THE INQUIRING JUDGE MUST ADVISE COUNSEL AND LITIGANTS APPEARING BEFORE HIM THAT HIS WIFE'S COMPANY IS REPORTING THE TRIALS OVER WHICH HE PRESIDES.
ANSWER: No. There is no reason to advise all counsel and litigants appearing before the judge that his wife's company is reporting the trials over which he presides because the judge will not be called upon to review the validity of his spouse's work product since his wife will not personally report any of the cases assigned to the inquiring judge.
WHETHER THE INQUIRING JUDGE SHOULD ATTEMPT TO DISSUADE HIS WIFE FROM PURSUING THE CIRCUIT'S COURT REPORTING SERVICE CONTRACT.
ANSWER: No. In light of the Committee's response to the prior questions, this query does not need to be addressed.
This inquiry comes from a circuit court judge whose wife owns a court reporting company that may apply to become a contract court reporter for the circuit. The judge explains that pursuant to Judicial Administration Rule 2.070(b), which provides for the reporting of all cases upon request of any party, the judge's circuit adopted a court reporting service plan pursuant to which reporting services are provided by independent contractors. The wife's company may apply to become the contract court reporter in the circuit. If the company is selected, the wife's employees would be required to serve as court reporters in the inquiring judge's courtroom. The inquiring judge recognizes that it would be inappropriate for his wife to personally report on cases assigned to him but, he questions whether there is a propriety concern for the wife's employees to report his matters. Assuming there are no propriety concerns, the judge next questions whether he must advise counsel and litigants appearing before him that his wife's company reports the proceedings. The judge's final query focuses on whether he should dissuade his wife from seeking this position as it may create instances where the judge will have to disqualify himself.
With respect to the first inquiry, as long as the inquiring judge's wife does not personally work on any of the cases assigned to the judge, and as long as the judge takes no part in the selection process of the reporting service contract, there are no propriety concerns. See Fla. JEAC Op. 93-10 (holding that the judge's spouse should not report cases assigned to the judge); see also Fla. JEAC Op. 88-10. Canon 2(B) of the Florida Code of Judicial Conduct provides that "[a] judge shall not lend the prestige of judicial office to advance the private interest of the judge or others. . . ." In Opinion 88-10, the Committee considered Canon 2B and advised a judge, whose wife was seeking employment as one of two county mediators to mediate child custody and support cases, to "isolate [him]self from any aspect of the decision leading to [his] wife's employment." Conversely, in Opinion 81-9, the Committee expressed concerns with a judge designating his spouse's employer as the official court reporter where the decision to designate the wife's employer as the official court reporter was within the judge's "total discretion." The Committee takes the view that if the inquiring judge does not take part in the decision-making process for the designation of the court reporting service contract, this case is more in line with Opinion 88-10.
With respect to the second inquiry, the Committee finds that because the wife will not personally report cases assigned to the judge, her work product will not be at issue in the judge's courtroom and, consequently, he will not be called upon to review the validity of her work. Accordingly, it is not necessary that he advise everyone of the company's employment and/or contract with the circuit. In Florida JEAC Opinion 93-10, the Committee opined that the judge's spouse should not be reporting the judge's cases because the accuracy of the transcripts may be an issue before the court and it would be unseemly for the judge to review his spouse's work product. The inquiring judge in the instant case recognizes the impropriety of having his spouse report cases assigned to him. Accordingly, the concerns addressed in Opinion 93-10 are not evident in the instant matter.
In light of the Committee's response to the previous queries, the final query, regarding whether the judge should attempt to dissuade his spouse from applying for the court reporting service contract, does not have to be addressed. However, it should be recognized that the Committee has previously opined that "[t]he Code does not regulate the employment of spouses." Fla. JEAC Op. 93-10; see Fla. JEAC Op. 88-10 (two members of the Committee believed that the inquiry relating to the inquiring judge's spouse seeking to become employed as a county mediator is an area beyond the Committee's authority and the inquiring judge was not presented with a potential ethical question since his spouse has an independent right to pursue employment).
The Committee concludes that so long as the inquiring judge takes no part in the selection of the court reporting service, and so long as the judge's spouse does not report cases assigned to the inquiring judge, there are no impropriety concerns. Additionally, the Committee concludes that the inquiring judge does not need to inform counsel and litigants appearing before him about his spouse's ownership of the court reporting service.
Code of Judicial Conduct: Canon 2B.
Florida Rules of Judicial Administration 2.070(b)
Florida Judicial Ethics Advisory Committee Opinions: Opinions 81-9, 88-10, and 93-10.
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 Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850
Judge Charles J. Kahn, Jr.
Judge Gisela Cardonne
Judge Lisa D. Kahn
Judge Phyllis D. Kotey
Judge David Levy
Judge Scott J. Silverman
Judge C. McFerrin Smith, III
Judge Jeffrey D. Swartz
Judge Emerson Thompson
Judge Richard R. Townsend
Marjorie Gadarian Graham, Esquire