FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2001-17
Date of Issue: November 29, 2001
JUDICIAL DISCLOSURE THAT A LAW FIRM THAT REPRESENTED JUDGE'S SPOUSE IS APPEARING BEFORE THE JUDGE, AND WHETHER DISQUALIFICATION IS MANDATED
1. Whether disclosure is appropriate when a party is represented by a law firm that previously represented the law firm of the judge's spouse in a legal malpractice action.
ANSWER: Yes (for a reasonable period of time).
2. Whether disqualification is ethically required when a party is represented by a law firm that previously represented the law firm of the judge's spouse in a legal malpractice action.
The judge's spouse is a shareholder and director of a medium-sized law firm. The law firm currently has two malpractice claims pending against it, neither of which alleges wrongdoing by the judge's spouse. The judge is currently entering orders of recusal in actions in which a party is represented by an attorney from the law firm representing the spouse's law firm. The inquiring judge questions whether disclosure is appropriate after the representation ceases, and if disclosure is made, whether disqualification is ethically required.
The issues in this inquiry involve mixed questions of ethics and law. The issue of disqualification is governed by Canon 3E of the Code of Judicial Conduct and Rule 2.160, Florida Rules of Judicial Administration. The issue of disclosure is governed by the commentary to Canon 3E.
Canon 3E of the Code of Judicial Conduct provides as follows: "A judge shall disqualify himself or herself in a proceeding in which a judge's impartiality might reasonably be questioned." The commentary to Canon 3E of the Code of Judicial Conduct sets forth the circumstances under which disclosure is appropriate:
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.
Therefore, disclosure of the spouse's former relationship with a law firm which now represents one of the parties is mandatory if the judge believes the information is relevant to the question of disqualification, and disqualification is required if the judge's impartiality might reasonably be questioned. The determination of whether the judge's impartiality might reasonably be questioned depends upon the nature and extent of the of relationship between the spouse and the attorney, whether the attorney was personally involved with the spouse, the monetary or personal significance of the case to the spouse, and the passage of time since the representation. Fla. JEAC Op. 93-17 and Fla. JEAC Op. 93-19.
This Committee believes that the inquiring judge should make a disclosure of the prior relationship for a reasonable period of time following the conclusion of the law firm's representation. This disclosure of information is not an admission of bias but is necessary to enable a party to make an informed decision as to whether or not to seek disqualification. A reasonable period of time has previously been suggested by this Committee to be from several months to one year, depending upon the unique facts and circumstances of the representation. Fla. JEAC Op. 86-9 and Fla. JEAC Op. 93-19.
Disclosure does not necessarily require disqualification pursuant to Canon 3E. The Supreme Court has recently held that different standards govern disqualification and disclosure and that the standard for disclosure is lower. In the case of In re: Frank, 753 So. 2d 1228 (Fla. 2000), the Supreme Court embraced the modern view that disqualification is personal and discretionary with the individual members of the judiciary. In making decisions regarding disqualification, the Supreme Court gave the following guidance to judges:
Judges must do all that is reasonably necessary to minimize the appearance of impropriety. They must remain cognizant of the fact that even in situations where they personally believe that their judgment would not be colored, public perception may differ.
In re: Frank, at page 1240. Although the Frank case involved an appellate judge, the Supreme Court's discussion of Canon 3E appears to be equally applicable to trial judges.
The inquiring judge correctly determined that disqualification is proper in cases in which the law firm, who also currently represents the spouse's law firm, appears before the Court. Berry v. Berry, 765 So. 2d 855 (Fla. 5th DCA 2000), Atkinson Dredging Company v. Henning, 631 So. 2d 1129 (Fla. 4th DCA 1994), and J and J Towing, Inc., et al v. Stokes, 26 Fla. L. Weekly D1741 (Fla. 4th DCA 2001). However, the Committee believes that after the representation is completed, there is no ethical duty for the Court to disqualify itself pursuant to Canon 3E under the facts and circumstances of this inquiry, unless the judge believes that the judge's impartiality might reasonably be questioned.
Although disqualification may not be ethically mandated, disqualification would be appropriate if a party filed a legally sufficient motion for disqualification pursuant to Rule 2.160, Florida Rules of Judicial Administration. If the motion is legally sufficient, the Court has no discretion and must grant the motion. This issue involves questions of law and is beyond the scope of this Committee. However, the inquiring judge is invited to review Marcotte v. Gloeckner, 679 So. 2d 1225 (Fla. 5th DCA 1996) for an interesting discussion of a very similar case.
Atkinson Dredging Company v. Henning, 631 So. 2d 1129 (Fla. 4th DCA 1994)
Berry v. Berry, 765 So. 2d 855 (Fla. 5th DCA 2000)
In re: Frank, 753 So. 2d 1228 (Fla.2000)
J and J Towing, Inc., et al v. Stokes, 26 Fla. L. Weekly D1741 (Fla. 4th DCA 2001)
Marcotte v. Gloeckner, 679 So. 2d 1225 (Fla. 5th DCA 1996)
Fla. JEAC Op. 86-9, Fla. JEAC Op. 93-17, Fla. JEAC Op. 93-19
Code of Judicial Conduct, Canon 3E
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 The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th St #712, Miami, FL 33125
Judges Cardonne, Davidson, Kotey, Levy, Silverman, Smith, Swartz, Thompson, Townsend and attorney 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)