Receded from in Opinion 2010-36

October 22, 1991

Opinion 91-17
Canon 3
Judge' spouse

You write that you are a former assistant public defender recently appointed to the county bench in Palm Beach County and are married to an assistant public defender working in your Circuit. Because of these circumstances, you ask the following:

a) Can you preside over cases which were in the public defender's office (although assigned to another assistant public defender) while employed by that office?

b) Is this permissible with a signed waiver by the defendant?

c) Can you preside over a criminal case in which the defendant is represented by an assistant public defender other than your husband?

Nine members of the ten member committee responding to these questions unanimously answered as follows:

a) No. You should disqualify yourself in accordance with Canon 3(C)(1)(b). See also our Opinion 77-11.

b) No. This is not an exception permitted by Canon 3(D), which, in some instances allows participation by the judge after disclosure and written agreement of the parties.

c) Not necessarily. Disqualification is not automatic just because your spouse works with a lawyer that represents the defendant in the proceeding before you. If, though, the circumstances of the case somehow place your impartiality in question, e.g., your spouse assisted the trial attorney in the preparation of the case, you should disqualify yourself. Otherwise, you should advise the parties your spouse is an assistant public defender in that office, and offer to step down. See Canon 3(C)(1) and ensuing commentary together with our Opinion 78-20.

The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges 327 So2d 5 (Fla. 1976).

With regards, I remain,

Yours very truly,

Jere Tolton, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members

Participating Members: Judges Green, Tolton, Booth, Dell, Doughtie, Goldstein, Farina, Rushing and Clarke, Esquire.

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
Judson Orrick, Managing Editor, The Florida Bar Journal
Brooke S. Kennerly, Executive Director, Judicial Qualifications Commission.
Hon. Walter K. Stapleton, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Cynthia Grey,Director, American Judicature Society
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Ms. Joan D. Cannon, Librarian, Supreme Court of Florida
William D. Wilkinson, Court Administrator, Lee County
Hon. Thomas H . Barkdull , Jr ., Third District Court of Appeal
Lynda Glyman, Esq. Center for Professional Responsibility, American Bar Association
Office of the State Courts Administrator, Legal Affairs & Education
Hon. Charles McClure, Chief Judge, Second Judicial Circuit