FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2007-17
Date of Issue: November 15, 2007

ISSUES

ISSUE I

Whether a judge should disclose to the state when a criminal defense attorney appearing before the judge is currently on the judge’s campaign committee.

ANSWER: Yes.

ISSUE II

Whether a judge should disqualify himself or herself when a criminal defense attorney appearing before the judge is currently on the judge’s campaign committee.

ANSWER: Not necessarily.

ISSUE III

If disqualification is required, whether disqualification extends to other members of the defense attorney’s law firm.

ANSWER: Yes.

FACTS

The inquiring judge is currently assigned to the criminal division.  The judge formed an election campaign committee, and some of the committee members are defense attorneys representing criminal defendants assigned to the judge’s division.  The judge is concerned about his or her ethical obligations with respect to disclosure and disqualification when the committee members appear before the judge.

DISCUSSION

Canon 3E(1) provides that “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 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.”

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.  The Florida Supreme Court has held that a judge is not required to disqualify himself or herself when counsel appearing before the judge contributed to the judge’s political campaign or served on the judge’s campaign committee, without more.  See MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1335 (Fla. 1990); Nathanson v. Korvick, 577 So. 2d 943, 944 (Fla. 1990); see also Zaias v. Kaye, 643 So. 2d 687 (Fla. 3d DCA 1994) (judge not required to disqualify himself when attorney made a contribution and served as one of sixty members on judge’s re-election campaign committee; facts must be alleged indicating “a specific and substantial political relationship”); Braynen v. State, 895 So. 2d 1169 (Fla. 4th DCA 2005) (attorney of record being one of thirty-four members of opponent’s steering committee in contested judicial race did not constitute grounds for disqualification on criminal defendant’s motion).

Additional case law provides more specific guidance on when disqualification is appropriate.  In Neiman-Marcus Group, Inc. v. Robinson, 829 So. 2d 967, 968 (Fla. 4th DCA 2002), the trial judge informed the parties that an attorney of record served as his re-election campaign treasurer.  The court held that disqualification was warranted “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 . . . .”

Likewise, in Dell v. Dell, 829 So. 2d 969, 970 (Fla. 4th DCA 2002), the court held that the trial judge should have granted the petitioner’s motion for disqualification because opposing counsel was one of six committee members of the judge’s ongoing campaign, as opposed to “merely one of the 110 attorneys endorsing the judge’s campaign,” and noted that the re-election campaign was ongoing while the case was pending.

In Florida Judicial Ethics Advisory Committee Opinion 03-22, the Committee addressed questions of disclosure and disqualification and advised that a judge must make his or her decision on disclosure or disqualification on a case-by-case basis after considering two critical factors:  (1) the extent of an attorney’s involvement in the judge’s judicial campaign; and (2) the remoteness in time of an attorney’s participation.  Fla. JEAC Op. 03-22.

In that opinion the Committee answered in the negative the inquiring judge’s question of whether disclosure or disqualification was required whenever an attorney of record who had served as a member of the judge’s re-election campaign committee appeared before the judge.  Fla. JEAC Op. 03-22

In the most recent Judicial Ethics Advisory Committee opinion on this topic, the Committee opined that a judge should disqualify him or herself for a reasonable time when an attorney with a close social and political relationship with the judge came before him or her.  Fla. JEAC Op. 04-01.  There, the judge and attorney had a social relationship of 28 years.  Politically, the attorney had served as the judge’s campaign treasurer and had committed to serve in the same capacity in the current year.  The attorney also represented the judge in a personal injury action eleven years earlier. 

The Committee unanimously agreed that “at the very least,” disclosure was mandatory.  Fla. JEAC Op. 04-01.  Under the circumstances presented, the Committee also advised disqualification for a reasonable period of time following the 2004 campaign.  The opinion explained that while disqualification was not automatic, there had never been a prior advisory opinion that involved such a close social and political relationship.

While the inquiring judge here does not provide the number of committee members on his or her campaign, or positions held by attorneys appearing before the judge, it is significant that the defense attorneys’ campaign participation is not remote in time to their representation.  In reviewing Canon 3E’s commentary, the Committee believes the participation of these attorneys with the ongoing campaign, at a minimum, is “relevant to the question of disqualification.”  Disclosure on the record, therefore, is required.

The limited facts presented here do not permit the Committee to opine as to whether disqualification with respect to any of the attorneys appearing before the judge is mandatory.  The inquiring judge will need to evaluate each situation on a case-by-case basis.  Should the judge conclude that disqualification is required, the inquiring judge should also consider Canon 3F which allows the parties to waive the disqualification.

Finally, the Committee advises that any ethical obligations regarding disclosure and disqualification arising out of an attorney’s appearance extends to any member of the attorney’s law firm.  See JEAC Op. 04-01 (disqualification applied to members of attorney’s law firm); JEAC Op. 03-22 (disclosure and/or disqualification applies when any member of attorney’s law firm appears before the judge).

REFERENCES

Cases: MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990); Nathanson v. Korvick, 577 So. 2d 943 (Fla. 1990); Braynen v. State, 895 So. 2d 1169 (Fla. 4th DCA 2005); Neiman-Marcus Group, Inc. v. Robinson, 829 So. 2d 967 (Fla. 4th DCA 2002); Dell v. Dell, 829 So. 2d 969 (Fla. 4th DCA 2002); Zaias v. Kaye, 643 So. 2d 687 (Fla. 3d DCA 1994)

Code of Judicial Conduct: Canon 3E(1), Commentary to Canon 3E(1), and Canon 3F

Florida Judicial Ethics Advisory Committee Opinions: 04-01; 03-22

_____________

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 Judge Lisa Davidson, Chair, Judicial Ethics Advisory Committee, The Moore Justice  Center, 2825 Judge Fran Jamieson Way, Viera, FL 32940.

Participating Members:
Judge Robert T. Benton, II, Judge Michael Raiden, Judge Lisa Davidson, Judge McFerrin Smith, Judge Leslie B. Rothenberg, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro, Judge T. Michael Jones, Marjorie Gadarian Graham, Esquire & Patricia E. Lowry, 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
Inquiring Judge (Name of inquiring judge deleted from this copy)