FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2008-03
Date of Issue: February 13, 2008
(1) Whether recusal is required in cases where a Judge’s former fiancé serves as a forensic CPA expert.
(2) Whether a Judge should disclose that a former fiancé’s CPA firm leases office space from a partnership in which the Judge is a general partner.
The Inquiring Judge will soon be assigned to the family division of the circuit court. The Judge’s former fiancé routinely serves as a forensic CPA expert in family matters. Their engagement ended over two and a half years ago and they currently do not have a social relationship. Additionally, the Judge’s fiancé’s CPA firm currently leases office space from a partnership in which the Judge is a general partner.
The Judge inquires whether recusal is required in all cases in which the former fiancé serves as a forensic CPA expert; if recusal is not required, whether disclosure to the parties of the prior relationship is necessary; and if so, for how long. Lastly, the Judge asks whether disclosure to the parties that the former fiancé’s CPA firm leases office space from a partnership in which the Judge is a general partner is also required.
This inquiry generally invokes Canon 3E(1), Florida Code of Judicial Conduct, which requires a judge to disqualify himself or herself where his or her impartiality might reasonably be in question. Further, the commentary to that section states that a judge shall disclose on the record any information that he or she believes the parties or their attorneys might consider relevant to disqualification, even if the judge believes that there is no 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.
In Florida Judicial Ethics Advisory Committee Opinion 03-14, the inquiring judge asked whether he could appoint a psychologist, or the psychologist’s business partner, to conduct psychological evaluations in criminal cases if the judge was previously engaged to be married to the psychologist, but the engagement had ended over ten years prior. The judge and the psychologist both married others, but continued to remain friends with one another. The judge also inquired whether he was required to disclose his prior relationship with the psychologist. In that opinion, the JEAC advised that the judge could appoint the psychologist, or the psychologist’s partner, so long as the appointment was based solely upon merit and was not influenced by friendship or the prior personal relationship. Fla. Code Jud. Conduct, Canon 3C(4). However, whether or not to disclose the prior relationship and continued friendship was a decision to be made by the judge on a case-by-case basis. The Committee further concluded that because of the passage of time (ten years) and their subsequent remarriages, there was no reasonable basis to assume the judge would be influenced to appoint the psychologist because of the prior marriage engagement.
In another opinion, the JEAC stated that the decision to disclose a prior relationship was not necessarily based on the passage of time, but is rather a question of whether the court’s impartiality might reasonably be questioned. Fla. JEAC Op. 93-17. There, the Committee opined that the test is whether an objective, disinterested person knowing all the circumstances would reasonably question the judge’s impartiality. See also Fla. JEAC Op. 95-15 (Judge, who had been represented eight years ago by an attorney in a matter concerning custody of his son, need not disclose the former representation in cases involving the attorney).
In the instant matter, the Judge’s engagement ended less than three years ago. Given the short amount of time, prior JEAC opinions and the commentary to Canon 3E, a majority of the Committee advises the Inquiring Judge that disqualification is necessary. Two members supporting the majority opinion remind the Inquiring Judge that Canon 3F permits a judge to ask the parties and their lawyers to consider a remittal of disqualification. Five of the Committee members disagree stating that the Judge need only disclose the prior relationship to the parties and their counsel. Two members supporting the minority suggest that the Inquiring Judge should offer disqualification. These members also state that if any party accepts the Judge’s offer of disqualification, the Judge must fulfill the offer. See Deloach v. State, 911 So. 2d 888 (Fla. 1st DCA 2005).
The Code squarely addresses whether a judge should disqualify himself or herself or disclose professional or business relationship with lawyers. However, there is no definitive answer as to this issue. 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. Accordingly, in addressing the second issue presented, the Committee unanimously agrees that the Judge should disclose the CPA firm’s business relationship with the Judge.
Fla. Code Jud. Conduct, Canons 3E(1); 3C(4); 3F.
JEAC Ops. 03-14; 93-17; 95-15
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.
Judge Robert T. Benton, II, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Judge Michael Raiden, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, Judge, Judge Richard R. Townsend, Judge Dorothy Vaccaro, 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)