FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Receded from in Opinion 07-16

Opinion Number: 2003-18
Date of Issue: October 31, 2003

DISCLOSURE AND DISQUALIFICATION REQUIRED WHEN A LAW FIRM EMPLOYING THE JUDGE'S NIECE AS A SUMMER ASSOCIATE APPEARS BEFORE THE JUDGE.

DISCLOSURE AND DIS-QUALIFICATION NOT REQUIRED WHEN A LAW FIRM APPEARS BEFORE THE JUDGE THAT HAS EMPLOYED THE JUDGE'S BROTHER AS AN EXPERT WITNESS IN A DIFFERENT MATTER NOT PENDING BEFORE THE JUDGE.

ISSUES

Whether a judge is obligated to disclose and disqualify himself or herself when the law firm employing the judge's niece as a legal intern appears before the judge.

ANSWER: Yes.

Whether a judge is obligated to disclose and disqualify himself or herself when a law firm appears before the judge that has employed the judge's brother as an expert witness in a different matter not pending before the judge.

ANSWER: No, depending on the judge's case-by-case weighing of the facts in light of the guiding principles on disclosure.

FACTS

The inquiry states that the judge's niece is a second year law student and wishes to procure a summer associate position in a nationally prominent firm. If the niece obtains the summer associate position, the inquiry is whether the judge is obliged to disclose and disqualify himself or herself when the employing law firm appears before the judge.

The judge also states that the judge's brother is a partner in a public accounting firm, and this firm is retained to provide forensic accounting and litigation services by parties involved in disputes. The brother and members of the public accounting firm testify as expert witnesses in cases. The inquiry is whether the judge is obliged to disclose and disqualify himself or herself when a law firm appears in his or her court that retained the brother's accounting firm in a different matter not pending before the judge.

DISCUSSION

Canon 3E(1) states that "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned ." The Canon then lists specific instances where the judge must disqualify, including when "a person within the third degree of relationship to" the judge "is acting as a lawyer in the proceeding." Fla. Code Jud. Conduct, Canon 3E(1)(d)(ii). See also 38.02, Fla. Stat. (2003). The Commentary to this Canon states that "[t]he 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."

Regarding the judge's first inquiry, this Committee's prior opinions have described a fairly broad rule of disqualification in questions involving legal employment by a judge's family member. See Fla. JEAC Op. 97-08. In Opinion 97-08, this Committee outlined the evolution of this broad rule of disqualification. The Committee noted that in Opinion 81-01, it opined that the judge should disqualify, without regard to actual impartiality, in cases involving the law firm in which the judge's spouse was employed. In Opinion 82-17, this Committee clarified that "there is no substantive difference between a partner of the firm, an associate of the firm, or one who is employed by the firm." In Opinion 84-24, this Committee stated that a judge should not sit on any case involving the law firm in which one of the judge's nephews was a partner, and another nephew was an associate. This Committee found that "disqualification should be the standard procedure unless the parties, when notified of their relationship, enter a remittal of disqualification as provided in Canon 3D" (now 3F). Fla. JEAC Op. 84-24; see also Fla. JEAC Op. 92-17. Therefore, the inquiring judge is obliged to disclose the relationship in any cases involving the law firm that employs the niece as a summer associate. See Fla. JEAC Op. 89-17 (illustrating proper announcement of disclosure). However, the parties may agree that the judge not be disqualified in accordance with Canon 3F.

As to the judge's second inquiry, Canon 3E(1) and its commentary do not require automatic disclosure and disqualification. Prior opinions involving similar situations hold that disclosure and disqualification is not required when a family member is employed in a non-advocate role by an entity that is involved with the courts. For example, in Opinions 00-17, 93-41, and 93-18, this Committee opined that the employment of a judge's or magistrate's spouse by a law enforcement agency did not require blanket disclosure or disqualification in all cases involving that specific agency. More closely related to the facts of this inquiry is Opinion 94-03, wherein this Committee opined that a judge, whose spouse was employed as a chemist by the Department of Environmental Regulation, was not required to disclose or disqualify in cases involving the Department, unless the spouse's work was specifically involved in the case. Two members expressed the view that it would be more appropriate to disclose the spouse's employment in any case involving the Department. Fla. JEAC Op. 94-03.

Thus, it appears that the inquiring judge would not be obliged to disclose and disqualify when a law firm appears in his or her court that retained the accounting firm of the judge's brother in a separate matter not pending before the judge. However, the guiding principle to be followed in these situations is outlined in Pool Water Products, Inc. v. Pools by L.S. Rule, 612 So. 2d 705, 707 (Fla. 4th DCA 1993):

The judge should disclose matters which he or she believes might reasonably impair his or her impartiality. However, after searching his of (sic) her conscience and determining that the matter will not have an effect, disclosure is not required.

See also W.I. v. State, 696 So. 2d 457, 458 (Fla. 4th DCA 1997); Commentary to Fla. Code Jud. Conduct, Canon 3E(1)(d); Fla. Code Jud. Conduct, Canon 2A, and Commentary thereto ("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."). The fact that the inquiring judge chooses to disclose the relationship between the brother and law firm would not automatically require the judge to be disqualified upon request by either party. W.I., 696 So. 2d at 458.

REFERENCES

38.02, Florida Statutes (2003).

In W.I. v State, 696 So. 2d 457, 458 (Fla. 4th DCA 1997).

Pool Water Products, Inc. v. Pools By L.S. Rule, 612 So. 2d 705 (Fla. 4th DCA 1993).

Florida Code of Judicial Conduct, Canon 2A, Commentary to Canon 2A, Canon 3E(1)(d), Commentary to Canon 3E(1)(d), and Canon 3F.

Fla. JEAC Op. 81-01
Fla. JEAC Op. 82-17
Fla. JEAC Op. 84-24
Fla. JEAC Op. 89-17
Fla. JEAC Op. 92-17
Fla. JEAC Op. 93-18
Fla. JEAC Op. 93-41
Fla. JEAC Op. 94-03
Fla. JEAC Op. 97-08 and
Fla. JEAC Op. 00-17.

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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 Judge Richard R. Townsend, Vice Chair, Judicial Ethics Advisory Committee, Clay County Courthouse, Post Office Box 1018, Green Cove Springs, FL 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Melanie May, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Jeffrey D. Swartz, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


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)