No Empty Nest

A recent opinion from the Florida Judicial Ethics Advisory Committee

Whether a judge may allow an adult child living in the judge’s home to be employed part-time by a local criminal defense attorney.

ANSWER: Yes.

The inquiring judge’s eighteen-year-old child, who is a senior in high school, has been offered a short-term, part-time position with a criminal defense attorney who practices in the same county as the inquiring judge. The precise nature of the work is unspecified, but the inquiring judge informs us that it will likely be administrative or clerical. Moreover, the hiring attorney has indicated to the inquiring judge that the child would not be allowed to work in any way on any cases that the judge presides over or attend court when the judge is presiding.

Reason

The commentary to Canon 3E(1) further states:

[A] judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply. . . . A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.

“[I]ssues of disqualification involving law firms employing relatives of a judge should be resolved on a case-by-case basis with careful consideration given to the relationship between the relative and the law firm.” Fla. JEAC Op. 07-16. Here, the short-term, part-time, administrative position described by the inquiring judge would not appear to reflect any more than a de minimis interest in the firm and any proceedings involving the firm. And the inquiring judge has indicated that the child’s employment will not entail any participation at all in cases before the inquiring judge. Accordingly, disqualification would not automatically be triggered unless the judge’s impartiality might otherwise be reasonably questioned. See Fla. JEAC Ops. 07-16, 07-11, 02-15. However, the inquiring judge should remain vigilant to the possibility that the child might participate indirectly in cases over which the judge is presiding. As we stated in Fla. JEAC Op. 07-11, “disclosure is not necessary unless the judge believes that the judge’s impartiality might reasonably be questioned. . . . This would appear to be the case only if” the judge’s relative “was directly or indirectly involved” in a case pending before the judge. See also Fla. JEAC Op. 07-16, 12-02.

(Mike Frisch)