FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-08
Date of Issue: March 26, 2020

ISSUES

1. Whether disqualification is required when the judge’s brother-in-law is a partner in a large law firm whose members may appear before the judge, in view of the decision in Sands Pointe Condominium Association, Inc. v. Aelion?

ANSWER: Yes.

2. If disqualification is required, is remittal of disqualification pursuant to Canon 3F permissible?

ANSWER: Yes, so long as the procedures set forth in Canon 3F are followed.

3. If disqualification is not required, is disclosure required?

ANSWER: This question is rendered moot by the answer to question 1.

FACTS

Issue # 1:

A judge’s brother-in-law is a member of a large law firm whose members appear before the judge. The judge asks if one is required to disqualify himself or herself from cases in which the brother-in-law is not involved, in view of the holding in Sands Pointe Ocean Beach Condominium Association, Inc. v. Aelion, 251 So 3d 950 (Fla. 3rd DCA 2018). The district court of appeal in that decision found that disqualification of the entire firm was not required in a situation in which one member of a large firm was the opponent of the judge in an upcoming judicial election.

In the Sands Pointe case, id., the court, after thoroughly considering both prior appellate decisions and opinions issued by the Judicial Ethics Advisory Committee, determined that disqualification is not automatically required if the judge’s opponent is merely a member of a large law firm and there is no significant relationship between the attorney appearing before the court and the judge’s opponent and if nothing had been done by the attorney’s law firm to take a position or to otherwise become involved in the election.

Further information provided by the inquiring judge reveals that the firm with which the judge’s brother-in-law is associated employs about fifty attorneys and has offices in three counties. The judge’s brother-in-law is a partner in the firm but works in a division separate from the attorneys who appear before the judge.

 

DISCUSSION

Fla. Code Jud. Conduct, Canon 3E (l) states that a judge should disqualify himself or herself in a proceeding “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a parties’ lawyer . . .” [or] (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:” . . . (iii) “is known by the judge to have a more than de minimus interest that could be substantially affected by the proceeding.”

The inquiring judge seeks a determination of whether the reasoning of the Sands Pointe court, based on its analysis of the rationale behind disqualification, would allow the judge to preside over a case in which a member of the judge’s brother-in-law’s law firm represents a party if the firm is large and the brother-in-law has no involvement in the case.

Though judges should always be disqualified if evidence of actual prejudice exists, the decisions of both this committee and of the appellate courts suggest that questions involving elections must be analyzed in a somewhat different manner from those involving familial or financial relationships. The importance of allowing attorneys to participate in various ways in judicial election campaigns without undue consequences for them or for their law firms was recognized in the Sands Pointe court’s analysis and has been noted by the Florida Supreme Court in several of its decisions. See Nathanson v. Korvick, 577 So. 2d 943 (Fla. 1991) and Zaias v. Kaye, 643 So. 2d 687 (Fla. 1994).

Such situations in which the constitutional issue of encouraging free and fair elections is implicated must be viewed somewhat differently from other cases. Those cases are affected not only by the strictures of Canon 3 of the Florida Code of Judicial Conduct, but also add the specific protections and restrictions included under Canon 7 of the Code. In the present inquiry, only Canon 3 is to be considered.

The commentary to Canon 3E (1) (D) provides:

The 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(l), 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 (l) (d) (iii) may require the judge’s disqualification.

The committee finds that the inquiry before it is controlled by Canon 3E and that Fla. JEAC Op. 17-20 addresses the exact question posed. In that opinion, a judge had inquired whether a judge must be disqualified if an attorney from a law firm in which the judge’s brother-in-law is a partner appears as counsel in a case before the judge. The answer was an unequivocal yes. That same opinion, to which the inquiring judge is referred, cites numerous prior decisions of this committee involving inquiries concerning the employment of a judge’s relative by a law firm. While the need for disqualification becomes less clear as the relative’s kinship to the judge becomes more distant or the relative’s position in the firm is less directly related to the practice of law, one party having a lawyer from a firm in which someone as close as the judge’s brother-in-law is a partner could indeed cause other parties to reasonably question the judge’s impartiality. As stated in Fla. JEAC Op. 17-20, “We believe that a partner in a law firm has more than a de minimus interest in any case in which an attorney from that firm appears, whether it be a matter of reputation, client satisfaction, or economics.” The committee finds nothing in the Sands Pointe case that would cause it to recede from its holding in Fla. JEAC Op. 17-20. It is the opinion of the committee that the inquiring judge should disqualify himself or herself from the case.

Issue # 2:

In answer to the judge’s second question, whether a remittal of disqualification is appropriate, the committee agrees that the judge may disclose on the record the basis for the disqualification and, in accordance with the procedures set forth in Canon 3F, may ask the parties whether they wish to waive the disqualification. See Fla. JEAC Op. 06-26.

Issue # 3:

The judge’s third question, whether disclosure is required if disqualification is not required, is rendered moot by the committee’s determination that disqualification is required in the circumstances described by the judge.

 

REFERENCES

Sands Pointe Condominium Association, Inc. v. Aellion, 251 So.3d 950 (Fla. 3d DCA 2018)

Nathanson v. Korvick, 577 So. 2d 943 (Fla. 1991)

Zaias v. Kaye, 643 So. 2d 687 (Fla. 1994)

Fla. Code Jud. Conduct, Canons 3E(1)(a) and (d), 3F

Fla. JEAC Op. 07-17, 06-26

_____________


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 W. Joel Boles, Judicial Ethics Advisory Committee Chair, M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

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 deleted)
Chief Justice Charles T. Canady, Justice Liaison
John Tomasino, Supreme Court Clerk
All Committee Members
General Counsel of the JQC
Melissa Hamilton, Staff Counsel