FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2003-22
Date of Issue: November 18, 2003

DISCLOSURE AND DISQUALIFICATION IN CASES IN WHICH ATTORNEY WAS MEMBER OF JUDGE'S RE-ELECTION COMMITTEE.

ISSUES

Whether a judge is disqualified in all cases in which an attorney who was a member of the judge's re-election committee appears as an attorney of record in a case.

ANSWER: No.

If the judge is not disqualified when an attorney appearing before the judge was a member of the judge's re-election committee, must the judge make a disclosure in each of those cases, and recuse himself or herself if requested to do so?

ANSWER: No.

FACTS

The Inquiring Judge was involved in a contested judicial election. A number of attorneys assisted the Judge in varying degrees in the Judge's re-election efforts. Some attorneys were members of the Judge's re-election committee, and other attorneys were active participants in the campaign. The inquiring judge is concerned about his or her ethical obligations regarding disqualification or disclosure when these attorneys appear before the Judge.

DISCUSSION

The Florida Supreme Court has held that attorneys' financial contributions and/or participation on a judicial campaign without more is not legally sufficient grounds for disqualification. MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990) (holding $500 campaign contribution alone insufficient to warrant disqualification). The Supreme Court noted that:

[L]eading members of the state bar play important and active roles in guiding the public's selection of qualified jurists. Under these circumstances, it would be highly anomalous if an attorney's prior participation in a justice's campaign could create a disqualifying interest, an appearance of impropriety or a violation of due process sufficient to require the justice's recusal from all cases in which that attorney might be involved.

Id. at 1337-1338. The MacKenzie court further recognized that there are certain safeguards to eliminate improper influence. For instance, judges do not directly solicit for campaign contributions; there is a statutory limit on the amount of the contribution; and names of the contributors and the amount of their contributions must be disclosed. Id. at 1336; see also Nathanson v. Korvick, 577 So. 2d 943 (Fla. 1991) (holding campaign contribution and service on campaign committee did not require disqualification); Zaias v. Kaye, 643 So. 2d 687 (Fla. 3d DCA 1994) (holding campaign contribution and service on campaign committee did not, without more, require disqualification); JEAC Op. 78-7 (opining judge not required to recuse in case in which participating attorney has contributed time or money to judge's campaign); and JEAC Op. 92-44 (opining judge not required to disclose that attorney is contributor to election campaign).

The extent of an attorney's involvement in the judge's judicial campaign, and the remoteness in time of the attorney's participation, are the critical factors that the judge must analyze to determine if the judge should disqualify or disclose or do neither.

In JEAC Opinion 93-16, a majority of the Committee stated that the judge was not required to disclose that an attorney appearing before the judge had been an active campaign worker in the judge's last contested election. The attorney had distributed leaflets, held signs on street corners, walked door-to- door, operated a telephone bank, had a party to introduce the candidate judge, and wrote letters to his clients urging them to vote for the judge. Two committee members expressed concern that the question depended on particular facts and circumstances. One committee member stated that he would feel differently if the attorney had been on the judge's campaign committee.

In Neiman-Marcus Group, Inc. v. Robinson, 829 So. 2d 967 (Fla. 4th DCA 2002) the court held that a judge must disqualify himself from a case when the attorney representing the litigant had been the judge's campaign treasurer during the judge's recent re-election campaign. The court noted however, that if the relationship was so remote in time as to dispel any appearance of impropriety, disqualification was not required. Neiman-Marcus, 829 So. 2d at 968. The court took into account the special role of a campaign treasurer, versus involvement in a campaign alone. Nieman-Marcus cited to Barber v. MacKenzie, 562 So. 2d 755, 758 (Fla. 3d DCA 1990), wherein the Third District noted that in a situation regarding disqualification of a trial judge from cases involving his election opponent, the committee recommended "disqualification 'for a period of time, perhaps two years, until ... considering all the circumstances ..., your impartiality cannot reasonably be questioned.'" (quoting Fla. Sup.Ct. Comm. on Stds. of Conduct Concerning Judges, Op. 84-23 (Oct. 26, 1984)).

In Dell v. Dell, 829 So. 2d 969 (Fla. 4th DCA 2002) the court found that a judge must grant the motion for disqualification. The party alleged that the opposing attorney was one of six members on the judge's re-election committee and that the committee was currently engaged in an on-going campaign seeking the judge's re-election. The case and campaign were both occurring contemporaneously.

The above Judicial Ethics Advisory Committee and court opinions only provide guidance to the Inquiring Judge on the Judge's inquiry. However, there is no bright line test. A judge must make his or her decision on disclosure or disqualification on a case-by-case basis, after considering the extent of the attorney's involvement in the judge's campaign and the remoteness of time since the judge's campaign. The Inquiring Judge, in determining if he or she should disqualify himself or herself, or if he or she should disclose due to an attorney's participation in the judge's judicial election, must be cognizant of Canon 3E(1), Florida Code of Judicial Conduct, which states that "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, regardless, of whether any specific rules in Section 3E(1) apply."

A judge is not per se required to disqualify himself or herself after making a disclosure. W.I. v. State, 696 So. 2d 457, 458 (Fla. 4th DCA 1997) (explaining that fact that judge conveys information about friendship does not automatically require disqualification.) The Commentary to Canon 3E(1) states:

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.

If a judge believes that a relationship with an attorney must be disclosed or if a judge believes he or she should disqualify himself or herself, then that same disclosure and/or disqualification applies when any member of the attorney's law firm appears before the judge. See JEAC Op. 99-13 (opining that judge currently represented by attorney must be disqualified from cases whenever members of attorney's firm appear before judge); JEAC Op. 99-2 (opining that if judge believes that a relationship with an attorney must be disclosed then that same disclosure should be made when any member of the attorney's law firm appears before the judge), and JEAC Op. 89-8 (explaining judge should disqualify himself or herself in any proceeding involving the attorney's law firm in which impartiality might reasonably be subject to doubt).

If the Inquiring Judge determines that his or her disqualification is ethically required due to an attorney's participation in the judge's judicial campaign, the judge may also consider Canon 3F, which allows the parties to agree permit the judge to continue presiding on the case1.

REFERENCES

Cases: Nathanson v. Korvick, 577 So. 2d 943 (Fla. 1991)
MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990)
Dell v. Dell, 829 So. 2d 969 (Fla. 4th DCA 2002)
Neiman-Marcus Group, Inc. v. Robinson, 829 So. 2d 967 (Fla. 4th DCA 2002)
W.I. v. State, 696 So. 2d 457 (Fla. 4th DCA 1997)
Zaias v. Kaye, 643 So. 2d 687 (Fla. 3d DCA 1994)
Barber v. MacKenzie, 562 So. 2d 755 (Fla. 3d DCA 1990)
Fla. Code Jud. Conduct, Canon 3E(1), Commentary to Canon 3E, and Canon 3F
Florida Judicial Ethics Advisory Committee Opinions: 99-13, 99-2, 93-16, 92-44, 89-8, 84-23, 78-7.

_____________

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, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Phyllis Kotey, Judge Melanie May, Judge Jose Rodriguez, Judge McFerrin Smith, III, 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)

1Canon 3(F), Florida Code of Judicial Conduct, provides:

A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.