FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2004-35
Date of Issue: November 23, 2004
Must a judge disclose a close personal friendship with a lawyer who does not personally practice before the judge, when handling cases involving that attorney's associate?
ANSWER: Yes, assuming the judge would feel compelled to disclose the friendship if the friend were appearing personally.
The inquiring judge is a close friend of a local attorney and the attorney's spouse, and they apparently socialize on a regular basis. The attorney does not appear before the inquiring judge, but an associate does. The judge asks whether it is necessary to "disclose any aspect of this situation to the opposing party" in any of the associate's cases, adding that the judge does not personally feel a need to recuse or disqualify.
As observed in Fla. JEAC Op. 93-56, "The question of when a judge must reveal his close personal relationship with an attorney is very difficult to address." Judges are by definition attorneys and are not expected to remain "socially apart from [other] attorneys." Several ethics opinions cite the decision in Pool Water Products, Inc. v. Pools by L. R. Rule, 612 So. 2d 705 (Fla. 4th DCA 1993), in which the trial judge was an acquaintance of one of the parties and disclosed that fact, only to receive a motion for disqualification. The decision may be read as suggesting it is up to the judge on a case-by-case basis to determine whether the facts surrounding a friendship are of such nature as to give the opposing side reasonable concern over the judge's impartiality. If so, it is probably immaterial whether the judge "personally feel[s] a need to recuse or disqualify." See Commentary to Canon 3E(1), which further states, "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."
In Fla. JEAC Op. 89-3, the Committee indicated the judge should disclose a social relationship with an attorney who had in the past provided the judge and members of his family with gifts described as "modest." Moreover, some committee members suggested the judge consider automatic recusal if the judge anticipated accepting additional gifts from the lawyer in the future. It is, therefore, recommended that the inquiring judge in the present case evaluate whether the friendship with this particular attorney consists merely of socializing or whether, possibly, the attorney also has conferred or will confer gifts or other benefits upon the judge. If so, the argument in favor of disclosure is certainly stronger.
The answer does not change when, as here, it is only an associate of the attorney/friend who appears before the judge. In Fla. JEAC Op. 89-8, as a follow-up to Fla. JEAC Op. 89-3, the same judge went on to ask whether the Committee's recommendations extended to appearances by other members of the friend's firm. The Committee perceived no difference. This is in keeping with the general rule that a conflict of interest with one attorney extends to all members of that attorney's firm. Fla. JEAC Op. 93-56, quoted above, reaches this same conclusion.
Accordingly, this Committee recommends that the judge disclose the existence of the friendship even when handling the associate's cases if, in the judge's estimation, the nature of the friendship is sufficient to warrant reasonable concern over the judge's impartiality.
Pool Water Products, Inc. v. Pools by L. R. Rule, 612 So. 2d 705 (Fla. 4th DCA 1993)
Fla.JEAC Op. 89-3
Fla.JEAC Op. 89-8
Fla. JEAC Op. 93-56
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 Melanie May, Judge Michael Raiden, 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
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)