Saturday, November 18, 2017
From the Florida Judicial Ethics Advisory Board
Opinion Number: 2017-20
Date of Issue: November 13, 2017
1. Whether a judge shall 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?
ANSWER: Yes, subject to remittitur.
2. May a judge enter an agreed-upon order submitted by the parties appointing the judge’s cousin as a mediator?
ANSWER: Yes, so long as selection of the cousin as a mediator is initiated by the parties.
3.Whether a judge shall be disqualified if the wife of the judge’s cousin appears before the judge.
ANSWER: No. Disqualification may be required, however, depending upon the relationship between the judge and the wife of the judge’s cousin.
4. Whether a judge shall be disqualified if the daughter of the judge’s cousin appears before the judge
ANSWER: No. Disqualification may be required, however, depending upon the relationship between the judge and daughter of the judge’s cousin.
5. Whether a judge must disclose the relationship when the wife or daughter of the judge’s cousin, or a member of their respective law firms, appears before the judge.
The opinion provides its reasoning for each answer.
As to the cousins
The wife and the daughter of the inquiring judge’s cousin in issue #2 (maternal grandfather’s sister’s son) are both attorneys in private practice who likely will or may be appearing in the circuit’s civil division. The inquiring judge would like to confirm that these relatives are not within the third degree of relationship as defined by the Code. The judge would also like to know whether it is appropriate to disclose the family relationship when the cousin’s wife or daughter, or any member of their respective firms, appears before the judge.
Canon 3E(1)(d)(ii), Fla. Code Jud. Conduct, provides that a judge shall be disqualified if a person within the third degree of relationship is acting as a lawyer in the proceeding. The definition of “third degree of relationship” contained in the Code does not include “cousin.” Fla. Code Jud. Conduct, Definitions; see Fla. JEAC Ops. 04-06, 97-13. As a result, neither the wife nor the daughter of the cousin is a relative of the third degree, and disqualification is not required solely because of the proscription set forth in Canon 3E(1)(d)(ii).
Disqualification may be required, however, depending upon whether a close familial relationship exists. Because disqualification is not mandated by 3E(1)(d)(ii), it is controlled by the nature of the relationship. The inquiring judge must examine the personal relationship with the wife and with the daughter of the cousin to determine whether or not disqualification is required on the basis that the judge’s impartiality may reasonably be questioned. Canon 3E.
Every family relationship is different. In the case of the wife or the daughter of the cousin, if a close familial tie exists, the judge’s impartiality might reasonably be questioned and disqualification would be required. On the other hand, if the judge does not have a close familial relationship with either the wife or the daughter of the cousin, disqualification would not be required. See Fla. JEAC Ops. 12-32, 97-13.
Even if the judge determines that there is no basis for disqualification, a disclosure of the relationship should be made.