FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-08
Date of Issue: February 22, 2019

ISSUES

Whether a judge must recuse himself or herself from a case when the judge’s spouse’s law partner served as chair of a Florida Bar section that filed an amicus brief in the case.

ANSWER: No.

FACTS

The inquiring judge’s court issued an order inviting entities to file an amicus brief in a case the inquiring judge’s court agreed to consider en banc.

A multi-office law firm employs the inquiring judge’s spouse. A partner at the law firm is the past-chair of a section of the Florida Bar. While chair of the section, the partner assigned several section members to research and prepare an amicus brief. The attorneys who prepared the amicus brief are not members of or employed by the spouse’s law firm. The amicus motion and brief both explain that the involvement of the partner was administrative as chair of the Florida Bar section. The signature block of the brief listed the partner, but the partner did not sign the brief. The amicus brief was not filed on behalf of any person or entity other than the Florida Bar section. The brief states that it is “not in support of either the Appellant or the Appellee, but a neutral brief intended to bring to the attention of the Court” an understanding of the legislation at issue.

Finally, the inquiring judge’s spouse was not involved with the process of assigning the brief to the section members or preparing the brief.

 

DISCUSSION

Canon 3E(1) of the Florida Code of Judicial Conduct provides, in relevant 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:
. . .

    (c) the judge knows that he or she individually or as a fiduciary, or the judge’s spouse, parent, or child wherever residing, or any other member of the judge’s family residing in the judge’s household 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;

    (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; [or]

    (iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding[.]

 

The Commentary to Canon 3E(1)(d) states that “[t]he 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 3E(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.”

Prior opinions from this Committee have addressed the employment of the spouse or child of an inquiring judge at a law firm. See Fla. JEAC Ops. 19-06; 18-26; 08-06; 07-16; 06-26; 98-20; 97-08. This Committee has also distinguished the employment of the spouse or child of an inquiring judge at a law firm from employment in a governmental capacity. See Fla. JEAC Ops. 03-08; 02-15; 97-25; 83-10; 77-12; 77-04. We explained that the employee of a government agency, unlike an attorney at a law firm, does not have a substantial interest in the outcome of the proceeding. See Fla. JEAC Op. 97-25 (citing Ind. Comm’n on Jud. Qualifications Advisory Op. 1-89).

The circumstances giving rise to this inquiry are not from the judge’s spouse’s partner’s activities on behalf of the law firm or its clients; instead, the focus is on the partner’s limited action as chair of a Florida Bar committee who assigned the preparation of an amicus brief to committee members who are not part of the spouse’s law firm.

Regardless, “issues 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. We have explained that “the result depends upon the relationship of the employing entity to the judge and the spouse’s degree of participation.” Fla. JEAC Op. 02-15.

An amicus curiae is a “friend of the court,” not a party to the proceeding. A judge must carefully evaluate the need for recusal based on the filing of an amicus brief, particularly at the rehearing stage of a proceeding. The Federal Rules of Appellate Procedure contemplate this scenario and provide that “a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.” Fed. R. App. P. 29(a)(2); see also 5th Cir. R. 29.4 (“After a panel opinion is issued, amicus curiae status will not be permitted if the allowance would result in the disqualification of any member of the panel or of the en banc court.”); 2d Cir. R. 29.1(a) (“The court ordinarily will deny leave to file an amicus brief when, by reason of a relationship between a judge assigned to hear the proceeding and the amicus curiae or its counsel, the filing of the brief might cause the recusal of the judge.”).

Based on the facts provided, the spouse of the inquiring judge played no role in preparing the amicus brief or assigning the amicus brief to a different firm. The spouse, and the law partner of the spouse, have no interest in the outcome of the proceeding. The Committee does not believe these facts require disqualification, particularly with the filing of a neutral amicus brief.

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 Fla. Code Jud. Conduct, Canon 3E(1).

 

REFERENCES

Fed. R. App. P. 29(2)

5th. Cir. R. 29.4

2nd Cir. R. 29.1(a)

Indiana Commission on Jud. Qualifications Advisory Opinion 1-89

Fla. Code of Jud. Conduct, Canon 3E(1)

Fla. JEAC Ops. 19-06; 18-26; 08-06; 07-16; 06-26; 03-08; 02-15; 98-20; 97-25; 97-08; 83-10; 77-12; 77-04

_____________


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