FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-01
Date of Issue: January 19, 2005

ISSUES1

Where the attorney spouse of a judge of compensation claims represents the Bureau of State Liability Claims in non-workers' compensation matters, and where the Bureau of State Liability Claims and the Bureau of State Employees' Workers' Compensation Claims are both bureaus within the Division of Risk Management of the State of Florida, is the judge of compensation claims necessarily disqualified under Canon 3E(1)(c), Code of Judicial Conduct, from presiding over workers' compensation claims where the carrier is the Division of Risk Management?

ANSWER: No.

Under the facts outlined in the preceding question, would the judge of compensation claims be disqualified by Canon 3E(1)(c) from presiding over workers' compensation claims against a named employer subdivision of the State where that employer subdivision was represented, through the Bureau of State Liability Claims, by the judge's spouse in other, non-workers' compensation cases?

ANSWER: Yes.

May the parties waive the disqualification in cases described in question 2?

ANSWER: Yes.

Would the answer to question 2 be different if an outside adjusting company hired by the Bureau of State Liability Claims, rather than the Bureau itself, retained the spouse as counsel for the employer?

ANSWER: No.

FACTS

A Judge of Compensation Claims2 inquires whether disqualification is required if the judge's attorney spouse represents the Bureau of State Liability Claims in non-worker's compensation matters and, if so, whether such disqualification may be waived by the parties.

The Bureau of State Liability Claims and the Bureau of State Employees' Workers' Compensation Claims are two of the three bureaus within the Division of Risk Management of the State of Florida.

The Bureau of State Liability Claims (BSLC) retains attorneys to litigate non-workers' compensation cases both in the same geographical area where the judge of compensation practices and in other areas of the state. None of the BSLC's litigation falls within the jurisdiction of the Office of the Judge of Compensation Claims.

A worker's compensation action by an injured State employee would be styled in the name of the employee versus the employer and the employer's "carrier," the Division of Risk Management. Thus, a worker's compensation action by John Doe, an employee of the Department of Transportation, would be styled John Doe, employee, v. Florida Department of Transportation, employer, and Florida Division of Risk Management, carrier.

DISCUSSION

The employment of a judge's spouse can create an ethical conflict for the judge if the employment is sufficiently involved or related to the judge's particular court or its operation. JEAC Opinions 2003-08 and 2002-02. Whether a judge is disqualified depends upon the relationship of the employing entity to the judge and the spouse's degree of participation. JEAC Opinion 2003-08, citing JEAC Opinion 2002-15. Inquiries of this nature are fact specific and must be resolved on a case-by-case basis. Id.

Canon 3E(1)(c) of the Code of Judicial Conduct states: "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: ...(c) the judge knows that...the judge's spouse...has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding."

Where the attorney spouse of the judge of compensation claims represents a party, the judge has an economic interest associated with that party, even though the spouse's representation occurs in a proceeding other than the one before the judge. The judge's spouse clearly derives an economic benefit from attorney's fees paid by the party, and the judge shares in that economic benefit. Amended JEAC Opinion 99-28. This is particularly true where the spouse represents the party on a continuing, multi-case basis; there, certainly, the economic benefit derived by the spouse and the judge from the representation is more than de minimis.

Thus, where the spouse's client is a named party in a worker's compensation action before the judge of compensation claims, the judge is disqualified from presiding over the case. This is true without regard to the fact that the spouse's representation occurs not in the case before the judge but in other cases in other forums. For example, if the spouse regularly defends the Florida Department of Corrections in federal court against civil claims made against it by prisoners, the judge would be disqualified from presiding over workers' compensation claims made against the Florida Department of Corrections by its employees.3

Disqualification may be waived if the judge of compensation claims makes proper disclosure and the parties waive disqualification. Amended JEAC Opinion 99-28. Canon 3F of the Code of Judicial Conduct states, in material part: "A judge disqualified by the terms of 3E may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge, whether to waive disqualification...." Any waiver should be made on the record and, as a precaution, the judge may wish to have the parties and counsel submit the remittal of disqualification in writing. Id.

Disqualification is required, however, only where a party before the judge is represented in other matters by the judge's spouse. Disqualification is not required where the judge's spouse represents neither the particular employer nor the particular carrier before the judge. The mere fact, without more, that the spouse's client is a state bureau which is one of several bureaus under the umbrella of a party (the Division of Risk Management) does not require disqualification. Under such a circumstance, the economic benefit is too attenuated to require disqualification. Although disqualification is not required, disclosure is. A judge should disclose information in circumstances even where disqualification may not be required, In re Frank, 753 So.2d 1228, 1239 (Fla. 2000), if the judge believes that the parties or the lawyers might consider the information relevant to the question of disqualification. See Commentary to Canon 3.

The opinions offered above would not change if the spouse were retained as counsel for an employer not by the Bureau of State Liability Claims but by an adjusting firm hired by that bureau. Adding an artificial layer of insulation between the attorney and the ultimate client does not alter the conclusions reached.

REFERENCES

Canons 1, 2A, 3, 3E

JEAC Ops. 75-20, 80-03, 99-28, 02-02, and 03-08

In Re: Frank, 753 So. 2d 1228, 1239 (Fla. 2000)

Amendments to the Florida Rules of Workers' Compensation Procedure No. SC04-110 (Fla. December 2, 2004)

_____________

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 Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Melanie May, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Judge Dorothy Vaccaro, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)

1 The questions have been slightly reworded from those presented by the judge of compensation claims.

2 Before issuing this opinion, the Committee has considered the recent Supreme Court of Florida opinion in Amendments to the Florida Rules of Workers' Compensation Procedure, no. SC04-110 (Fla. December 2, 2004). In its opinion in that case, the Florida Supreme Court declined to consider amendments to the Florida Rules of Worker's Compensation Procedure, because it concluded that the Court did not have jurisdiction under the Florida Constitution to adopt rules of practice and procedure for an executive branch agency [the Florida Department of Labor].

A minority of the Committee believes that, for similar reasons, the Committee should not issue opinions to judges of compensation claims regarding the applicability of the Code of Judicial Conduct.

A majority of the Committee, however, notes that the Committee has previously issued opinions to judges of compensation claims and to their predecessors (deputy commissioners and judges of industrial relations), see, e.g, JEAC Opinions 99-28, 80-3, and 75-20; that the Application section of the Code of Judicial Conduct expressly directs anyone who performs judicial functions, including a judge of compensation claims, while performing judicial duties, to conform his or her conduct to Canons 1, 2A, and 3, and to such other provisions of the Code as may reasonably apply, depending upon the nature of the judicial function performed; and concludes that issuance of an ethics opinion to a judge of compensation claims remains appropriate.

3 The judge's inquiry suggests that the bureau for whom the spouse works [the Bureau of State Liability Claims] would never be the carrier in workers' compensation claims; rather, the carrier would be the Division of Risk Management.