FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 2001-06
Date of Issue: April 20, 2001

ISSUES

DOES A JUDGE HAVE A DUTY TO INVESTIGATE OR DISCLOSE TO THE FLORIDA BAR POTENTIAL UNAUTHORIZED PRACTICE OF LAW BY A SUSPENDED ATTORNEY IN THE JUDGE'S COURT?

ANSWER: Yes, provided that the judge's investigation discloses a reasonable possibility that unauthorized practice of law is taking place.

WHERE THE JUDGE WAS PREVIOUSLY EMPLOYED AS A LAW CLERK BY A NOW-SUSPENDED ATTORNEY WHO APPEARS BEFORE THE JUDGE PRO SE, MUST A JUDGE DISCLOSE THE PREVIOUS RELATIONSHIP OR ENTER A DISQUALIFICATION?

ANSWER: No.

FACTS

A suspended attorney routinely appears before the inquiring judge. The judge believes that the suspended attorney is representing, apparently in a pro se fashion, a collections company in which the suspended attorney has an ownership interest. This collections company, through the suspended attorney, attempts to collect attorneys' fees billed by the suspended attorney before the suspension became effective.

The company also receives assignments in property for which the suspended attorney attempts to collect existing debts. Several members of the local bar have brought this matter to the attention of the inquiring judge and have expressed their belief that unauthorized practice of law is taking place. The judge inquires whether a duty to investigate arises, or whether a duty to disclose the matter to The Florida Bar arises.

The inquiring judge was also previously employed by the suspended attorney as a law clerk. The judge discloses this to parties at the beginning of any litigation in which the suspended attorney is involved. Nevertheless, the judge is concerned about those cases where the other party has suffered a default and never appears, thus negating the possibility of disclosure.

DISCUSSION

"A judge who receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar shall take appropriate action." Fla. Code Jud. Conduct, Canon 3D(2). A suspended lawyer continues as a member of The Florida Bar, "but without the privilege of practicing." R. Regulating Fla. Bar 3-5.1. "All Florida judges are, first and foremost, attorneys and members of The Florida Bar. As such, Florida judges, just like every other Florida attorney, have an obligation to maintain the integrity of the legal profession and to report to The Florida Bar any professional misconduct of a fellow attorney." Fla. JEAC Op. 98-21. This Committee has previously stated that before making a report to The Florida Bar, the inquiring judge should "first make a determination as to whether a substantial likelihood exists that the lawyer in question violated the Rules of Professional Conduct." Fla. JEAC Op. 97-17. The judge is required to reach a "reasoned determination" of whether a lawyer has committed a violation of the Rules Regulating The Florida Bar. Id. Should the judge reach that conclusion, the judge would then be obligated to inform the Bar. Id.

Accordingly, in the present case, the inquiring judge must make a reasoned determination of whether the situation set out in the inquiry is a violation of the Rules Regulating The Florida Bar. The inquiry does not reveal whether the collections company in question is a corporation or a proprietorship. In this regard, the inquiring judge should consult Rule 7.050(a)(2), Florida Small Claims Rules. If the judge determines that a substantial likelihood of a violation exists, the judge should report the matter to The Florida Bar. If the judge is unable to satisfactorily complete an investigation, the judge may immediately report the matter to The Florida Bar and request an investigation.

Assuming for purposes of the second question that the suspended attorney may properly appear in a pro se fashion, the inquiring judge need not disclose the prior law clerk relationship with the now-suspended attorney, nor must the judge enter a disqualification. Under the general rule of disqualification, a judge must disqualify himself or herself in a proceeding "in which the judge's impartiality might reasonably be questioned . . . ." Fla. Code Jud. Conduct, Canon 3E(1). If a judge is receiving payments from a former law firm, the judge must not preside over cases involving former law partners. Fla. JEAC Op. 00-34. In Opinion 00-34, this Committee overruled Opinion 75-7 to the extent that the former opinion would allow a judge to preside where the judge was receiving payments under a promissory note from a lawyer or law firm appearing before the judge. Nevertheless, Opinion 75-7 also finds "no impropriety per se in your former associates practicing before you . . . ." This part of the opinion has not been overruled. Accordingly, assuming that no financial arrangement exists between the inquiring judge and the lawyer in question and, further, that a sufficient time has passed so that no objective person would question the judge's impartiality, the judge need not observe a per se rule of disclosure or disqualification.

REFERENCES

Code of Judicial Conduct: Canons 3D(2) and 3E(1).

Rule 3-5.1, Rules Regulating The Florida Bar.

Rule 7.050(a)(2), Florida Small Claims Rules.

Florida JEAC Opinions: 00-34, 98-21 97-17, 75-7.

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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 Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850

Participating Members:
Judge Charles J. Kahn, Jr.
Judge Lisa D. Kahn
Judge Phyllis D. Kotey
Judge Scott J. Silverman
Judge C. McFerrin Smith, III
Judge Emerson Thompson
Judge Richard R. Townsend
Marjorie Gadarian Graham

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)