FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2009-01
Date of Issue: January 8, 2009
(1) Whether the inquiring judge’s acceptance of a weekend trip to Maine with an attorney eight to nine years ago requires the judge to continue recusing from cases handled by the attorney and the attorney's law firm.
(2) Whether disclosure on the record of the last eight to nine years of voluntary recusal and the reason therefor is required.
Approximately eight to nine years ago the inquiring judge accepted an invitation from an attorney to spend a long weekend at the lawyer’s home in Maine. The lawyer had appeared before the judge on several occasions and practices in the same area of law as the judge’s judicial assignment. The attorney made the plane reservations for the weekend trip, and although the judge had intended to reimburse the attorney for the plane tickets, he never did. The judge did, however, pay for all meals and at least part if not all of the rental car gasoline. Upon return from the weekend trip, the judge began automatically recusing from all cases involving the attorney and the attorney's law firm.
The inquiring judge reports that since the trip, the judge’s social relationship with the attorney has amounted to friendly conversation at the courthouse and the exchange of e-mails on a fairly regular basis.
The judge seeks an opinion as to whether continued disqualification is required when the attorney appears before the judge. The judge also seeks an opinion on whether disclosure of the judge’s subsequent voluntary standing recusal order and the reasons therefor are required even if disqualification is not.
Canon 3E(1) requires a judge to “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . .” including but not limited to instances where the judge has a personal bias. “The question whether disqualification is required ‘focuses on those matters from which a litigant may reasonably question a judge’s impartiality rather than the judge’s perception of his ability to act fairly and impartially.’” Stevens v. Americana Healthcare Corp., 919 So. 2d 713, 715 (Fla. 2d DCA 2006) (citing Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983). See also Fla. JEAC Op. 08-03 (majority concluded disqualification necessary when judge’s former fiancé serves as a forensic CPA expert and the relationship ended within the last three years).
The Committee believes that there are facts raised in the inquiry which are relevant to the issues of disqualification and disclosure, and first addresses those.
Canon 5D(5) mandates that a judge “shall not accept . . . a gift, bequest, favor or loan from anyone” unless a specific exception applies. Commentary to Canon 5D(5)(h) makes clear that the prohibition extends to gifts “from lawyers or their firms if they have come or are likely to come before the judge.” Among the exceptions under Canon 5D(5) are “ordinary social hospitality” and a “gift . . . from a . . . close personal friend whose appearance or interest in a case would in any event require disqualification under Canon 3E.” Canon 5D(5)(c) and 5D(5)(e).
The Committee concludes that the long weekend trip to Maine was a gift under Canon 5D(5) that does not fall within any exception. See Fla. JEAC Op. 08-19 (two-day hunting trip would be a gift under Canon 5); Fla. JEAC Op. 03-03 (room and meals at an upscale resort while participating in law firm’s litigation retreat may be a gift); Fla. JEAC Op. 97-02 (free admission to special events at theme parks are gifts); Fla. JEAC Op. 92-16 (tickets to various social and civic affairs considered to be a gift); and Fla. JEAC Op. 89-03 (contributions to son’s quail-raising hobby and use of North Carolina cabin are a gift). The Committee also concludes that the weekend trip, including plane tickets and lodging, is not “ordinary social hospitality,” so as to invoke an exception to Canon 5. See Fla. JEAC Op. 08-19 (majority concluded that “an overnight hunt like the one described, which includes multiple meals, lodging and recreation, is not an ordinary social hospitality”). Further, from the inquiry it does not appear that the attorney is a close personal friend whose appearance before the judge would require automatic disqualification under Canon 3E; nor does it appear that any other exception applies.
Having concluded that the weekend trip was a gift that does not fall within an exception, the Committee turns to the question of whether the acceptance of the gift many years ago requires continuing disqualification in the future.
The Committee does not believe that these facts necessarily require disqualification under Canon 3E(1). The first inquiry, however, is whether subjectively disqualification under Canon 3E(1) is necessary because of any personal bias. The Committee believes the judge is in the best position to make that determination. Even if the judge does not believe disqualification is necessary due to personal bias, the inquiry does not end there. The judge must also consider whether objectively, disqualification is required.
As to the objective test, the Committee believes there has been a sufficient passage of time so that the judge need no longer automatically recuse in cases involving the attorney or the attorney's firm. In Fla. JEAC Op. 04-06, the Committee concluded that two years was a reasonable period of time for a judge to disqualify himself or herself from hearing cases handled by the judge’s former law firm. In Fla. JEAC Op. 86-09, the Committee recommended a judge wait several months before hearing cases handled by an attorney who represented the judge and his family in a personal injury action, explaining that “the lapse of time will lessen the chance that some displeased litigant will ascribe his loss to your past attorney/client relationship with opposing counsel.”
Under the facts provided here, the Committee concludes that the lapse of eight to nine years greatly lessens the chance that a displeased litigant will blame his or her loss on the judge’s acceptance of a gift from opposing counsel. Accordingly, so long as the judge concludes that there is no personal bias, the Committee believes that automatic recusal is no longer necessary.
As to the remaining issue of disclosure, the Committee concludes that disclosure on the record of the judge's prior standing recusal order and the judge’s relationship with the attorney is required. The judge's obligation to disclose relevant information is broader than the duty to disqualify. In re Frank, 753 So. 2d 1228, 1239 (Fla. 2000); Stevens v. American Healthcare Corp., 919 So. 2d 713, 715 (Fla. 2d DCA 2006). 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 Committee concludes that parties or their lawyers who appear before the judge might consider the gift of a long weekend trip to the lawyer's home in Maine to be relevant to the question of disqualification, particularly in light of the fact that the judge and the lawyer continue to email each other regularly. See Fla. JEAC 89-03 (accepting contributions to son’s quail-raising hobby, hunting with attorney, and use of attorney’s North Carolina cabin requires disclosure of the relationship and benefit received); but see Fla. JEAC 99-2 (judge is in best position to make decision as to whether disclosure is required).
Although the nature of the emails has not been described, the fact of the continuing correspondence by email and its regularity suggests some degree of personal familiarity beyond the type of ordinary social pleasantries one would expect to be exchanged between a judge and an attorney who regularly appears before the judge. Accordingly, the Committee further advises that if the judge decides to cease the practice of automatic recusal from cases involving the attorney and the attorney’s firm, the judge should either discontinue the practice of regular email with the attorney or should disclose the fact of those communications now and for some reasonable period of time after termination of the practice.
Finally, the Committee reminds the judge that "disclosure of information is not an admission of bias but is necessary to enable a party to make an informed decision as to whether or not to seek disqualification." See Fla. JEAC Op. 04-06; Fla. JEAC Op. 01-17. The disclosure of a social or personal relationship does not automatically trigger an obligation to disqualify. See Stevens, 919 So. 2d at 715; Commentary to Canon 3E(1).
Cases: In re Frank, 753 So. 2d 1228 (Fla. 2000); Stevens v. Americana Healthcare Corp., 919 So. 2d 713 (Fla. 2d DCA 2006); Livingston v. State, 441 So. 2d 1083 (Fla. 1983).
Code of Judicial Conduct: Canons 3E(1), 5D(5), 5D(5)(c) 5D(5)(e), 5D(5)(h), and Commentary to Canons 3E(1), 5D(5)(h).
Florida Judicial Ethics Advisory Committee Ops.: 08-19; 08-03; 04-06; 03-03; 01-17; 97-02; 92-16; 89-03; and 86-09.
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 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. See 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. See Id.
The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside. This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.
For further information, contact: Judge C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 101 N. Alabama Avenue, Suite 437, Deland, FL 32724.
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.
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)