FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-26
Date of Issue: October 11, 2018

ISSUES

1. May a judge preside over a circuit court criminal division if the judge's child is an assistant public defender assigned to a separate circuit court criminal division before another judge in the same county?

ANSWER: Yes.

2. Should the judge routinely disclose that the judge's child is an attorney employed by the Public Defender's Office, serving in a different judicial division?

ANSWER: No.

FACTS

A judge has a child employed as an assistant public defender. It is likely that the judge's child will be assigned to the felony division of another judge in the same county as the inquiring judge. The judge further asks whether, if such an assignment does not preclude service in the felony division as proposed, the judge must routinely disclose that the judge's child is employed by the Office of Public Defender.

 

DISCUSSION

Situations in which a spouse or child of a judge is employed as an attorney are not uncommon. Fla. Code Jud. Conduct, Canon 3 addresses the need for disqualification in instances where relationships between judges and attorneys could lead to questions about a judge's impartiality. Fla. Code Jud. Conduct, Canon 3E(1)(d) deals specifically with the issue of proceedings in which a relative of the judge is involved and states that:

3E(1) 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:
. . . (d) the judge or the judge's spouse, or a person with the third degree of relationship to either of them, or the spouse of such a person:
. . . (ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimus interest that could be substantially affected by the proceeding;

The commentary to Canon 3E(1)(d) further states:

The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that "the judge's impartiality might reasonably be questioned" under Section 3 E(1), or that the relative is known by the judge to have an interest in the law firm that could be "substantially affected by the outcome of the proceeding" under Section 3E (1)(d)(iii) may require the judge's disqualification.

Numerous opinions of this Committee have indicated that disqualification is required when a spouse or child of the judge is a member of a law firm practicing before the judge. See, e.g., Fla. JEAC Ops. 97-08, 08-06. These holdings are based on the Committee's conclusion that when a judge's spouse or child is employed by a law firm appearing before the judge, the judge's spouse or child has more than a de minimus economic interest that could be substantially affected by the proceeding. Fla. JEAC Ops. 08-06; 07-16; 06-26; 98-20.

A different conclusion has been consistently reached by this Committee when faced with inquiries related to relatives employed by a state attorney, a public defender, or a legal aid office. In those instances, the organization by which the relative is employed has been distinguished from a typical law firm. The predecessor of this Committee, in Fla. JEAC Op. 97-25 noted the reasoning of the Indiana Commission on Jud. Qualifications Advisory in its Op. 1-89, wherein it was found 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.

Accordingly, this Committee opined in Fla. JEAC Ops. 77-12 and 03-08 that a judge is not disqualified merely because the judge's relative is employed by the State Attorney's Office, the Public Defender's Office (Fla. JEAC Op. 77-04), Legal Services Corporation (Fla. JEAC Op. 83-10), or Legal Aid (Fla. JEAC Op. 97-25). As this Committee recognized in Fla. JEAC Op. 02-15, the result depends upon the relationship of the employing entity to the judge and the relative's degree of participation. The Committee notes that inquiries of this nature are fact specific and therefore must be resolved on a case by case basis.

In the present inquiry, the judge's child, who would be working as an assistant public defender, would not be assigned to the inquiring judge's felony division. The judge recognized that an order of disqualification would be required should any case in which his child represents a defendant come before the judge.

Under the circumstances described by the judge, the Committee is of the opinion that disqualification is not required when a defendant is represented by another assistant public defender and the judge's child has had no involvement in the case.

Having determined that no need for automatic disqualification exists unless the judge's child is involved in the case before the judge, the question of disclosures is next considered. As stated in Fla. JEAC Op. 07-11:

Finally, disclosure is not necessary unless the judge believes that the judge's impartiality might reasonably be questioned. See Fla. JEAC Op. 97-25 and the commentary to Canon 3E (1). This would appear to be the case only if the spouse was directly or indirectly involved in the case pending before the judge.

The Committee finds that disclosure is not necessary under the circumstances described by the judge making the inquiry unless the judge's family member is directly or indirectly involved in the case of a defendant appearing before the judge.

 

REFERENCES

Fla. Code Jud. Conduct, Canon 3E
Fla. JEAC Ops. 08-06, 07-11, 07-16, 06-26, 03-08, 02-15, 98-20, 97-25, 97-08, 83-10, 77-12, 77-04,
Indiana Commission on Jud. Qualifications Advisory in its Op. 1-89

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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 of the committee.   See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with whether the proposed conduct violates a provision of that Code.

For further information, contact Judge James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator