FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2004-01
Date of Issue: January 16, 2004
Whether a judge should disqualify himself/herself pursuant to Canon 3E when an attorney or any member of the attorney's law firm appears before the judge and the judge has a close social relationship with the attorney, the attorney served as the judge's campaign treasurer and will serve in the same capacity in 2004, and the attorney represented the judge in a personal injury lawsuit eleven (11) years ago.
ANSWER: Yes, for a reasonable period of time.
The inquiring judge is currently assigned to the drug division, and the judge anticipates that one of the named partners in a small law firm who routinely represents criminal defendants will appear before him or her. The inquiring judge adds that this attorney is a close friend of twenty eight (28) years, served as his or her campaign treasurer and has committed to serve as the campaign treasurer in 2004. This attorney also represented the judge in a personal injury suit eleven (11) years ago.
Canon 3E(1) states "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. . ." The commentary to Canon 3E(1) states that "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." The commentary also 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 recuse himself or herself, then that same disclosure and/or recusal applies when any member of the attorney's law firm appears before the judge. See Fla. JEAC Op. 99-13, Fla. JEAC Op. 89-08.
There are previous opinions addressing these questions. The most recent, Fla. JEAC Op. 03-22, answered in the negative the question whether a judge is disqualified in all cases where an attorney who was a member of the judge's re election committee appears as attorney of record in the case. The Committee concluded that resolution of the question must be on a case by case basis. It identified the "crucial factors" to consider: (a) the extent of an attorney's involvement in the judge's campaign, and (b) the remoteness in time of the attorney's participation. The Committee also answered in the negative the question whether disclosure is required.
Fla. JEAC Op. 99-02 involved a judge who had asked a female attorney for a social dinner, and the attorney was a member of a large law firm. The relationship did not evolve into a personal relationship. The Committee stated that disclosure was discretionary with each judge depending on the particular circumstances of each matter. The Committee further stated that the judge need not disclose the social date to other members of the attorney's law firm that appear before him.
Fla. JEAC Op. 93-17 states, however, that "[i]f [a judge] maintain[s] strong social ties with the attorney or the prior representation was in a 'high profile' case or one of great personal or monetary significance to [the judge] or [the judge's] former lawyer, disclosure would be appropriate or necessary." The Committee stated that the decision to disclose is not necessarily based on time; rather, "[i]t is a question of whether the court's impartiality might reasonably be questioned. The test is whether an objective disinterested person knowing all the circumstances would reasonably question impartiality."
Fla. JEAC Op. 89-03 involved a relationship between a judge and an attorney who had contributed to the judge's son's interest in quail raising as a hobby. The Committee determined that the judge must disclose the social relationship with the attorney and the benefit received from the attorney whenever that attorney appeared in a proceeding before the judge. Two members of the Committee opined that if the judge intended to accept benefits in the future from the same attorney, the judge may wish to consider automatic recusal in each instance that attorney appears in matters before him or her.
Fla. JEAC Op. 93-16 dealt directly with an attorney who was an active campaign worker, i.e. distributed leaflets, held signs on street corners, walked door to door, operated a telephone bank, threw a party to introduce the candidate, and wrote letters to clients urging a vote for the judge. The Committee stated the judge was not required to disclose that an attorney in a case before him or her was a campaign worker. In a similar inquiry, the Committee in Fla. JEAC Op. 78-07, which involved an attorney who had contributed time and money to the judge's campaign, stated that it was not necessary for a judge to recuse himself or herself in any case in which a participating attorney contributed time or money to the judge's campaign.
Although the issue in this inquiry is whether disqualification is required under Canon 3E, and not whether a legally sufficient motion for disqualification could be filed, it is helpful to review case law. Appellate courts have held that where a judge selects an attorney to serve in the special role of campaign treasurer in an election campaign, and the campaign is not remote in time from the date the relationship is revealed to the opposing party, disqualification is warranted. See Neiman Marcus Group, Inc. v. Robinson, 829 So. 2d 967, 968 (Fla. 4th DCA 2002). Similarly, allegations that an attorney is currently engaged in an ongoing campaign seeking the judge's re election are sufficient to support granting a motion for disqualification. Dell v. Dell, 829 So. 2d 969, 970 (Fla. 4th DCA 2002).
Fla. JEAC Op. 86-09 dealt squarely with an attorney who had recently represented a judge in a personal injury action that had concluded. The Committee stated that the judge was not prohibited from hearing cases which involved the attorney who had recently represented the judge and his or her family. However, the Committee did state that the judge should allow several months to lapse before he resumed the handling of such cases. Similarly, the Committee in Fla. JEAC Op. 93-19 stated that the judge did not need to disclose that a large local law firm had represented him or her a year prior regarding the sale of one home and the purchase of another home. In an opinion involving an attorney who had represented the judge concerning the custody of his or her son, the Committee, in Fla. JEAC Op. 95-15, stated that the judge did not need to disclose that representation, even in light of the fact that the judge anticipated that the attorney will appear before him or her in family court.
The Committee unanimously agrees that, at the very least, disclosure is mandatory. The facts set forth above are clearly relevant to the issue of disqualification, thus triggering the disclosure requirements set forth in the commentary.
While the opinions discussed above find that disqualification is not automatic under similar scenarios, there are no prior advisory opinions that involve a relationship of such a close social and political nature as described by the inquiring judge. This close relationship with the attorney, coupled with the fact that the attorney will be the judge's campaign manager in 2004, warrants disqualification for a reasonable period of time following the 2004 campaign. This disqualification also applies to members of the attorney's law firm. However, disqualification may be waived by the parties through a remittal of disqualification as provided in Canon 3(F).
Section 38.05, Fla. Stat. (2002).
Neiman Marcus Group, Inc. v. Robinson, 829 So. 2d 967, 968 (Fla. 4th DCA 2002).
Dell v. Dell, 829 So. 2d 969, 970 (Fla. 4th DCA 2002).
Fla. Code of Jud. Conduct, Canons 2 and 3.
Fla. JEAC Ops: 78-07, 86-09, 89-03, 89-08, 93-16, 93-19, 95-15, 99-02, 99-13.
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.
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Phyllis Kotey, Judge Melanie May, Judge McFerrin Smith, III, Judge Jeffrey D. Swartz, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, 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)