FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-16
Date of Issue: November 21, 2005

ISSUES

I. Must a judge disclose to parties in a pending case, through their respective counsel, that the judge has reported an attorney in the case to the florida bar as a result of alleged misconduct by the attorney in the case?

ANSWER: Yes.

II. Is a judge required to disclose to the parties, through counsel, in subsequent cases in which the attorney appears, that the judge reported the attorney to the florida bar?
If so, for how long?

ANSWER: NO

III. Is a judge required or permitted to report to the appropriate authorities the actions of a notary public, involved in a pending case before the judge, concerning alleged misconduct by the notary public by notarizing a signature on a document in the case?

ANSWER: The judge is not required to report, but may do so.

IV. Is a judge required or permitted to disclose to the parties, through counsel in a pending case, that the judge has reported the notary to the appropriate authorities regarding the alleged misconduct of the notary in the case pending before the judge?

ANSWER: The judge is not required to disclose, but may do so.

V. Is the judge required to disclose to parties, through counsel in subsequent cases which involve the attorney or the attorney’s law firm, that the judge has reported a notary who works for the law firm to the appropriate authorities for misconduct? If so, for how long?

ANSWER: No.

VI. Is the judge required or permitted to report a party who may have committed a criminal offense to the state attorney?

ANSWER: The judge is not required to report, but may do so.

VII. If the judge is required or permitted to report a party who may have committed perjury to the state attorney, is the judge required to disclose to the parties in the case, through counsel, of the judge’s actions?

ANSWER: Yes.

VIII. Is the judge required or permitted to disclose to the parties, through counsel in subsequent cases including the same attorney or his law firm, that the judge reported a client represented by the law firm to the state attorney’s office for alleged criminal activity? If so, for how long?

ANSWER: No.

FACTS

The inquiring judge is presiding over a negligence action. Attached to the plaintiff’s answers to the defendant’s propounded interrogatories was a separate page containing the plaintiff's signature, underneath a jurat clause indicating that the plaintiff “after being first duly sworn . . . deposes and states that he has executed the foregoing answers to interrogatories, and that they are true and correct to the best of his knowledge and belief.” A notary's certificate followed.

At a hearing held after the service of the plaintiff’s answers to interrogatories, the plaintiff's counsel represented that he and the plaintiff generally discussed the interrogatories, during an office conference. The plaintiff’s counsel directed a notary in his law office to notarize the plaintiff's signature. However, no answers were prepared or appended to the signature page when the plaintiff signed the signature page. The plaintiff’s counsel further represented at the hearing that the plaintiff’s answers to the interrogatories were prepared several months after the plaintiff signed the signature page and the plaintiff’s signature was notarized.

The inquiring judge believes that there is a substantial likelihood that the plaintiff's attorney has violated the Rules Regulating The Florida Bar, including Rules 4-1.2(d) and 4-3.4(b), in that the notary prepared a false certificate in violation of section 117.105, Florida Statutes (2005); and that the client has offered false testimony under oath, in violation of Chapter 837, Florida Statutes.

DISCUSSION

The inquiring judge has an obligation to report the plaintiff’s attorney to The Florida Bar if the inquiring judge believes that this is the appropriate action to take under the circumstances presented. Canon 3(D)(2) of the Florida Code of Judicial Conduct directs that a judge who receives information or has actual knowledge that a substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar shall take appropriate action. The Florida Supreme Court has stated:

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 report to The Florida Bar any professional misconduct of a fellow attorney.

5-H Corp. v. Padovano, 708 So. 2d 244, 246 (Fla. 1997) (citations omitted). This Canon is mandatory, not hortatory. See also JEAC Ops. 98-21 and 97-17.

The parties to the pending action should be notified on the record through counsel that the inquiring judge referred the plaintiff’s attorney to The Florida Bar. The Commentary to Canon 3E(1) of the Florida Code of Judicial Conduct states “that a judge should disclose on the record information that the judge believes the parties or their attorneys might consider relevant to the question of disqualification, even if the judge believes there is not a real basis for disqualification.” Referring the plaintiff’s attorney to The Florida Bar is an issue that the parties might consider relevant to the question of disqualification.

However, the inquiring judge should be aware that a judge’s mere reporting of perceived unprofessional conduct to The Florida Bar, in and of itself, is not legally sufficient to support a motion for disqualification. See 5-H Corp. v. Padovano, 708 So. 2d 244 (Fla. 1997); and Birotte v. State, 795 So. 2d 112 (Fla. 4th DCA 2001).

The duty to disclose is broader than the duty to disqualify. The fact that a judge makes a disclosure is not necessarily a basis for disqualification. The issue should be addressed on a case-by-case basis. See W.I. v. State, 696 So. 2d 457 (Fla. 4th DCA 1997).

However two members of the Committee disagree that there is a requirement that the inquiring judge make this disclosure. These Committee members reason that since a judge’s referral of an attorney to the Florida Bar, without more, is never legally sufficient to disqualify the judge, there is no requirement or purpose for the inquiring judge to disclose the referral. One of the majority Committee members opined that while disclosure is required if the report is made while the case is pending before the inquiring judge, disclosure is not necessary if the report to the Bar is made after the conclusion of the case.

Eleven of the Committee members opined that the inquiring judge is not required to disclose that the Inquiring judge reported the attorney to the Florida Bar in subsequent cases in which the attorney appears before the inquiring judge. One Committee member believes that the Inquiring judge should disclose this information in subsequent cases in which the attorney appears before the inquiring judge. If, however, a judge decides that disclosure about an attorney in a law firm would be warranted in a matter, then the judge must make the same disclosure whenever members of the law firm appear in a case before the judge. See JEAC Op. 04-35 (judge is required to disclose a close personal friendship with a lawyer who does not personally practice before the judge, when handling cases involving the attorney’s associate if the judge would feel compelled to disclose the friendship if the friend were appearing personally); see also JEAC Ops. 04-01; 99-13; 93-56; 89-08.

The inquiring judge is not required to report the notary public to the State Attorney or to the Governor; or to report the client to the State Attorney’s Office. However, there is no ethical prohibition against the Inquiring judge making these reports. The Committee has previously addressed issues regarding the duty of a judge to report illegal conduct. In JEAC Opinion 78-4, a judge inquired whether he had an obligation to report assertions voluntarily made under oath during a domestic relations case, wherein one of the parties testified to having intentionally and deliberately omitted income from federal income tax returns filed. With regard to the present inquiry, three members of the Committee opined that the inquiring judge has a definite obligation to report the matter. Six members opined that although the judge has no obligation to report, neither is there an ethical prohibition against this action; thus, leaving the decision to the judge. One Committee member felt, however, that reporting treason to the state attorney’s office is required.

With the exception of one Committee member, the Committee believes that if the inquiring judge reports the client or the notary to an entity, then the inquiring judge should disclose this on the record to the parties through counsel in the case as required in the Commentary to Canon 3E(1). Disqualification may be warranted if the inquiring judge reports the client to the State Attorney’s Office. A judge may be disqualified whenever the judge’s impartiality might reasonably be questioned. Reporting the client to the State Attorney’s Office could subject the client to criminal prosecution and this could be viewed as a reasonable fear on the part of the client that the inquiring judge could not be fair and impartial. See Fla. R. Jud. Admin. 2.160(d), § 38.10, Fla. Stat. (2005).

The dissenting Committee member believes that disclosure is not required since credibility determinations, including whether a witness intends to mislead, are a necessary part of the judge’s decision making in resolving a case. Credibility determinations cannot be a basis for disqualification, just as rulings on motions or evidence cannot be a basis for disqualification. So disclosure is unnecessary and serves no purpose.

With the exception of one member, the Committee does not believe that the inquiring judge is required to report in other cases involving the plaintiff’s attorney’s law firm that the inquiring judge reported the plaintiff to the State Attorney’s Office, unless that inquiring judge believes that such information would have some relevance to the issue of disqualification for the parties or their attorneys in another case before the inquiring judge.

Again, with one exception, the Committee does not believe that the inquiring judge is required to disclose in cases involving the plaintiff’s attorney’s law firm, that the inquiring judge reported its notary to an entity for misconduct. However, one of the majority Committee members believes that the judge should disclose the inquiring Judge’s report of the notary in subsequent cases if the notary figures prominently in other cases.

 

REFERENCES

§§ 38.10, 117.105, 837.011, Fla. Stat. (2005).

5-H Corporation v. Padovano, 708 So. 2d 244 (Fla. 1997);
W.I. v. State, 696 So. 2d 457 (Fla. 4th DCA 1997);
Birotte v. State 795 So. 2d 112 (Fla. 4th DCA 2001).
Fla. R. Jud. Admin. 2.160(d); R. Regulating Fla. Bar 4-1.2(d); R. Regulating Fla. Bar 4-3.4(b).
Canons 3(D)(2), Commentary to Canon 3E(1), Florida Code of Judicial Conduct.
Florida Judicial Ethics Advisory Committee Opinions: 04-35, 04-01, 99-13, 98-21, 97-17, 93-56, 89-08, 78-4.

_____________

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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Marjorie Gadarian Graham, Esq., Chair, Judicial Ethics Advisory Committee, 11211 Prosperity Farms Road, Oakpark, Suite D129, Palm Beach Gardens, Florida 33410.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Leslie B. Rothenberg, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy L. Vaccaro, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
Inquiring Judge (Name of inquiring judge deleted from this copy)