Receded from in Opinion 2011-21

Opinion 77-4

January 14, 1977

Re: Canon 3C

Dear Judge:

This is in response to your recent letter inquiring about your continued assignment as a Circuit Judge in the juvenile Division in light of your brother's position as Chief Assistant Public Defender in the same said Juvenile Division.

You advise that you were recently elected to the Circuit Court taking office on January 4, 1977. You further advise that the Chief Judge has assigned you to the Juvenile Division. You indicate that your brother is presently the Chief Assistant Public Defender in the Juvenile Division and is responsible for assigning the public Defenders who will appear in the Juvenile Division. You indicate that most juvenile matters will involve the use of a Public Defender.

The Committee has reviewed your inquiry and the majority (5-4) is of the opinion that your brother's affiliation with the Public Defender's Office does not in and of itself disqualify you from sitting on cases which are handled by Assistant Public Defenders administratively assigned by your brother. Four members of the majority were clearly of this view, additionally observing that your brother's participation in any aspect of the proceedings as an attorney of record would necessitate your disqualification. The fifth member of the majority was of the view that your assignment to the Juvenile Division was in accordance with Rule 1.020(b)(ii), FRCP, and accordingly you should follow the directions of your Chief Judge.

Of the four minority members, two expressed he view that you should not sit on any cases in which the Public Defender's Office was involved and two expressed the view that either you or your brother should be re-assigned.

The Committee's decision was based upon a review and interpretation of Canon 3C of the Code of Judicial Conduct. The bare majority vote reflects that the question you presented is a very close one and not without some difficulty in its resolution.

We appreciate your inquiry and trust the foregoing will be of assistance to you.


Gerald Mager

Chairman, Committee on Standards of Conduct Governing Judges


Participating members: Boyer, Carlisle, Hewitt, Haverfield, Murphee, O'Connell, Sample and Stephenson