October 30, 1984

Opinion No. 84/24

Dear

Your inquiry is whether you should recuse yourself routinely in cases involving the law firm with which your two nephews are associated as partner and associate. You explained that, when assigned in the past, you have sat on cases involving the firm unless your nephew actually participated in the case and that you have been relying on prior opinions of the Committee, specifically 78/20 and 79/7, in that regard.

The majority of the Committee, seven of nine members voting, responds that you should not sit on a case involving the law firm with which your nephews are associated. This response is based on the Committee's most recent opinion, Opinion No. 82/17. Opinion No. 78/20 was disapproved and receded from in Opinions No. 81/1 and 82/17, and the last cited opinion states: "There is no substantive difference between a partner of the the firm, an associate of the firm, or one who is employed by the firm." Opinion 79/7, to the extent it is based on 78/20, is disapproved. The judge should apply the same rule whether counsel of record is the judge's relative or is some other member of the relative's law firm.

A minority of the Committee, two members, votes that you may sit on cases involving the firm but should inform counsel of the relationship and offer to recuse yourself.

Section 38.02, Florida Statutes, provides for disqualification when the person involved is related to the judge by consanguinity or affinity within the third degree, a designation which includes "nephews." (Florida Judges' Manual at page 3.57). The majority notes that the commentary following Canon 3C(1) does not require automatic disqualification, leaving it to the judge to determine whether "his impartiality might reasonably be questioned" or whether the lawyer/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." Nonetheless, the majority does recommend that, under the facts outlined in your inquiry, disqualification should be the standard procedure unless the parties, when notified of the relationship, enter a remittal of disqualification as provided in Canon 3D.

The Committee wishes to thank you for your inquiry and hopes this response has been of assistance to you.

Sincerely,

Anne C. Booth, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members

All reference to the inquiring judge is deleted from the copies sent to the following individuals.

Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Mark Hulsey, Esq., Chairman, Judicial Qualifications Commission.
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida

Participating members:

Judges Booth, Carlisle, Dell, Green, Grube, Letts, Tedder, and Turner, and Attorney Samuel J. Powers, Jr.