FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 99-28
Date of Issue: November 29, 1999

DISQUALIFICATION OF A COMPENSATION CLAIMS JUDGE FROM CASES WHERE ONE OF THE PARTIES IS REPRESENTED BY THE SPOUSE OF THE COMPENSATION CLAIMS JUDGE IN AN UNRELATED MATTER, IN ANOTHER DISTRICT?

RECUSAL OF A COMPENSATION CLAIMS JUDGE FROM CASES WHERE ONE OF THE PARTIES IS REPRESENTED BY THE SPOUSE OF THE COMPENSATION CLAIMS JUDGE IN AN UNRELATED MATTER, IN ANOTHER DISTRICT?

ISSUES

Whether a Claims Compensation Judge, whose spouse practices workers' compensation law in a different district, must disqualify himself/herself from all unrelated cases in which one of the parties is represented by his/her spouse?
ANSWER: Yes.

Whether a Claims Compensation Judge, whose spouse practices workers' compensation law in a different district, must recuse himself/herself from all unrelated cases in which one of the parties is represented by his/her spouse?
ANSWER: Yes.

FACTS

The inquiry comes from a nominee for Judge of Compensation Claims. The nominee's spouse practices workers' compensation law in a different county. The county in which the spouse practices is not in the same district as the district where the nominee will sit. The spouse represents insurance companies in the area of workers’ compensation on different and unrelated matters. The insurance companies will appear before the nominee/judge on different and unrelated matters. Therefore, the nominee/judge seeks to determine whether disqualification, recusal or both is required when an insurance company, represented by the spouse on unrelated matters, appears before the court.

DISCUSSION
Disqualification

An analysis of this issue should be made on two levels. First, the issue of mandatory disqualification must be considered. Second, the option of waiver of disqualification must be examined.

Florida Code of Judicial Conduct, Canon 3E(1)(c), requires that: "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 where: the judge knows that he or she individually or as a fiduciary, 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."

Thus, while the spouse's representation of the party occurs in a different district and concerns matters unrelated to issues before the judge, the judge has an economic interest associated with the party, even though the judge's financial interest is not directly linked to the subject matter in controversy. For example, the judge's spouse clearly derives an economic benefit from the insurance companies, i.e., attorney's fees for representation of the companies in other matters. Consequently, so too, would the judge and therefore disqualification is warranted.

Disqualification may be waived if proper disclosure and waiver is obtained from the parties. Florida Code of Judicial Conduct, Canon 3F, provides in part: "A judge disqualified by the terms of 3E may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification..."

Since the spouse practices in a different district, the parties litigating an unrelated matter in front of the judge, upon disclosure by the judge, may choose to waive disqualification. Of course, the waiver should be made on the record and as a precaution, the judge may wish to have the parties and counsel submit the remittal of disqualification in writing. Florida Judicial Ethics Advisory Opinions 85-2 and 84-24 discuss remittal of disqualification as a viable alternative after disclosure.

Florida Code of Judicial Conduct, Canon 2, states in relevant part that: "A judge shall avoid impropriety in all of the judge's activities." In the commentary to this Canon, it is noted that: "The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired."

It may be difficult to envision a scenario where the appearance of impropriety can be avoided when the judge derives a financial benefit from a party, in this case, insurance companies, appearing before the court. Moreover, Florida Judicial Ethics Advisory Opinions 92-8 and 81-1 do not suggest remittal as an alternative to disqualification. Therefore, the judge should proceed with extreme caution if remittal is utilized.

Recusal

An analysis of the issue of recusal is two part: recusal independent of a motion for recusal and recusal upon the request of one of the parties.

Chapter 38 of the Florida Statutes provides guidance for recusal upon disqualification, including a judge's disqualification on his/her own motion. Obviously, Chapter 38 should be carefully consulted when deciding whether a self-imposed disqualification and recusal is necessary.

Otherwise, upon a motion for recusal by one of the parties, pursuant to Florida Judicial Ethics Advisory Opinions 93-56 and 99-2, the motion should be granted regardless of the legal sufficiency of the motion.

REFERENCES

Florida Code of Judicial Conduct Canons 2 and Commentary, 3E, and 3F.

Florida Judicial Ethics Advisory Committee Opinions: 81-1, 82-17, 84-24, 85-2, 92-8, 92-17, 93-56, and 99-2.

Ch. 38, Fla. Stat. (1999).

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

For further information, contact The Honorable C. McFerrin Smith, III, Chairman, Judicial Ethics Advisory Committee, 130 West New York Avenue, DeLand, Florida 32720 .

Participating Members: Judges C. Kahn, L. Kahn, Silverman, Smith and Thompson.

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)