FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-06
Date of Issue: February 8, 2019

ISSUE

Whether a judge may allow an adult child living in the judge's home to be employed part-time by a local criminal defense attorney.

ANSWER: Yes.

FACTS

The inquiring judge's eighteen-year-old child, who is a senior in high school, has been offered a short-term, part-time position with a criminal defense attorney who practices in the same county as the inquiring judge. The precise nature of the work is unspecified, but the inquiring judge informs us that it will likely be administrative or clerical. Moreover, the hiring attorney has indicated to the inquiring judge that the child would not be allowed to work in any way on any cases that the judge presides over or attend court when the judge is presiding.

 

DISCUSSION

To the extent the judge's inquiry requests a determination as to whether or not the child may or may not accept the position, the Florida Code of Judicial Conduct does not prohibit a child in a judge's household from accepting employment at a firm that handles matters heard by the division in which the judge sits. See Fla. JEAC Op. 08-06.

With respect to the judge presiding over matters that involve this attorney's office, Canon 3E of the Florida Code of Judicial Conduct provides, in pertinent part:

(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 within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;
(iv) is to the judge's knowledge likely to be a material witness in the proceeding[.]

See also § 38.02, Fla. Stat. Relatives within a third degree of relationship are defined as "great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece." Fla. Code Jud. Conduct, Definitions. The commentary to Canon 3E(1) further states:

[A] judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply. . . . A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.

"[I]ssues of disqualification involving law firms employing relatives of a judge should be resolved on a case-by-case basis with careful consideration given to the relationship between the relative and the law firm." Fla. JEAC Op. 07-16. Here, the short-term, part-time, administrative position described by the inquiring judge would not appear to reflect any more than a de minimis interest in the firm and any proceedings involving the firm. And the inquiring judge has indicated that the child's employment will not entail any participation at all in cases before the inquiring judge. Accordingly, disqualification would not automatically be triggered unless the judge's impartiality might otherwise be reasonably questioned. See Fla. JEAC Ops. 07-16, 07-11, 02-15. However, the inquiring judge should remain vigilant to the possibility that the child might participate indirectly in cases over which the judge is presiding. As we stated in Fla. JEAC Op. 07-11, "disclosure is not necessary unless the judge believes that the judge's impartiality might reasonably be questioned. . . . This would appear to be the case only if" the judge's relative "was directly or indirectly involved" in a case pending before the judge. See also Fla. JEAC Op. 07-16, 12-02.

 

REFERENCES

Section 38.02, Fla. Stat.
Fla. Code Jud. Conduct, Canon 3E, 3E(1)
Fla. JEAC Ops. 12-02, 08-06, 07-16, 07-11, 02-15

_____________


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 Jeffrey T. Kuntz, 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