FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-17
Date of Issue: May 9, 2019

ISSUES

1. Whether a judge whose lawyer-parent is no longer associated with former law firm must continue recusing from the law firm’s cases.

ANSWER: No.

2. Whether judge whose parent owns building leased to a law firm must enter automatic recusal when the firm has a case before the judge.

ANSWER: Yes, unless the parent’s interest can be classified as de minimis.

FACTS

The inquiring judge has issued a blanket recusal on all cases involving the law firm where the judge worked before joining the bench because, until recently, one of the judge’s parents is a lawyer associated with the law firm. However, with the judge’s parent soon retiring, the judge asks whether the judge should continue to issue a blanket recusal on all of the firm’s cases. Additionally, the judge’s parent will continue to own the building where the law firm is a tenant. The inquiring judge asks whether that remaining economic relationship between the judge’s parent and the law firm mandates recusal.

 

DISCUSSION

The inquiry requires an analysis of Canon 3E(1)(d), Florida Code of Judicial Conduct, which provides:

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 . . . 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:

* * *

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

The Code of Judicial Conduct defines a third degree of relationship as a “great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece.” 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.

The first question posed by the inquiring judge requires little discussion. The judge is no longer required to maintain the previously entered blanket recusal when the judge’s parent is no longer associated with the law firm, so long as there is no other reason that the judge’s impartiality could be reasonably questioned.

The answer to the second question posed by the inquiring judge is more nuanced, and one which this Committee has not previously addressed in the same context. The Committee has previously opined that a judge in an economic relationship, such as landlord-tenant, with a lawyer or law firm should issue an automatic recusal. See, e.g.,Fla. JEAC Op. 85-08 (in inquiry from judge with mortgage held by lawyer, who is now tenant in the building he sold to judge, JEAC opined that “in view of the extent of this relationship, both tenant/landlord and creditor/debtor, you should recuse yourself and not sit on cases involving this attorney”); Fla. JEAC Op. 97-33 (blind trust does not remove conflict of interest where judge rents space to a lawyer who appears before the judge); Fla. JEAC Op. 01-11 (judge who owns lakeside trailer used for fishing trips with elected State Attorney must disqualify himself from all cases involving the state attorney’s office).

The Committee has also addressed situations where the judge’s spouse or child has an economic relationship with a law firm. See, e.g., Fla. JEAC Op. 18-26 (“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.”). The analysis is markedly different, however, when the judge’s relative is employed by governmental agencies. See Fla. JEAC Op. 18-26 (“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 . . . [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.”).

We have consistently noted that inquiries such as the one presented here must be decided on a case-by-case basis. See Fla. JEAC Op. 07-16 (“[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. If the relationship suggests that the judge’s impartiality might reasonably be questioned, 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, then the judge is disqualified. The present inquiry concerns a relative who is a student, non-lawyer, working part-time on an hourly basis, and has a de minimis interest in the firm and the proceeding. Under those circumstances, it is unlikely that the impartiality of the judge might reasonably be questioned.”).

Therefore, we advise the inquiring judge that recusal from cases involving the law firm which leases its office space from the judge’s parent is required unless the judge concludes that the judge’s parent’s interest in the economic well-being of the law firm is de minimis. The Committee believes that such a situation would be exceedingly rare. For example, if the law firm is not obligated to pay rent to the judge’s parent, then the judge could conclude that the parent’s interest in the firm is de minimis.

 

REFERENCES

Fla. Code Jud. Conduct, Canon 3E
Fla. JEAC Ops. 18-26, 08-06, 07-16, 06-26, 01-11, 98-20, 97-33, 97-08, 85-08

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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 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