FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-02
Date of Issue: March 19, 2010

ISSUE

Whether the Florida Code of Judicial Conduct requires disqualification of the judge from all cases in which the county is a party and is represented by the County Attorney's staff, where the judge is a partner in a building partnership with the County Attorney.

ANSWER: Yes.

Whether disqualification is required when the county is represented by outside counsel.

ANSWER: No, but only if the outside counsel is representing the county independent of the County Attorney’s supervision.

FACTS

The inquiring judge is a partner in a building partnership with former law partners, one of which is the current County Attorney.  The judge is transferring to a civil division where it is likely the judge will hear cases in which the county is a party.  The county will be represented at these hearings by either the County Attorney's office or outside counsel.  In those cases were the county is represented by the County Attorney's office, the County Attorney does not personally appear to argue the merits, although at times the County Attorney will appear as the representative of the county.  Whenever the county is represented by outside firms, these firms would not necessarily consult with the County Attorney on litigation matters.

  

The inquiring judge feels that Fla. Code Jud. Conduct, Canon 5 requires disqualification from any litigation where a party is represented by any of the current partners in the building partnership.  This, the judge feels, will require disqualification whenever the county is represented by the County Attorney.  However, the judge questions and thus seeks advice on whether this disqualification is required in those cases where the county is represented by outside counsel.

DISCUSSION

Several Canons of the Florida Code of Judicial Conduct are relevant to the resolution of the questioned conduct:

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….”

Canon 5A requires that

“A judge shall conduct all of the judge's extra-judicial activities so that they do not:
(1) cast reasonable doubt on the Judge's capacity to act impartially as a Judge;
(3) interfere with the  proper performance of judicial duties;...
(5) lead to frequent disqualification of the judge.”

Canon 5D(1) requires that

“A judge shall not engage in financial and business dealings that...

(b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.”

Canon 5D(4) requires that

“A judge shall manage the judge's investments and other financial interests to minimize the number of cases in which the judge is disqualified.  As soon as the judge can do so without serious financial detriment, the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification.”

The commentary to Canon 3E(1) makes it clear that "[u]nder this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply." Therefore, the rule requires disclosure on the record of information that the judge believes the parties or lawyers might consider relevant to the question of disqualification.  The decision of disqualification would be made on a case-by-case basis.

This Committee has previously addressed the ethical issues involving relationships of business partners of judges and real estate partnerships or interests, in particular.  In Fla. JEAC Op. 02-19, the Committee determined Fla. Code Jud. Conduct, Canon 3E(1)(c) required disqualification whenever an attorney, with whom the judge and four others owned a parcel of real estate, appeared before the judge.  Similarly, in Fla. JEAC Op.  07-02, the Committee opined that disqualification was required in cases in which former law partners and co-beneficiaries of a land trust appeared as counsel.  Notably, in Fla. JEAC Op. 01-11, the inquiring judge owned a one-sixth (1/6) interest in a trailer.  One of the owners was the then newly-elected State Attorney.  The Committee determined not only that the judge had to enter an Order of Disqualification from all cases involving the State Attorney but also in all cases handled by any of the State Attorney’s assistants.  (See also Fla. JEAC Op. 01-05 requiring disqualification from all Public Defender cases where judge was married to the Public Defender).  This blanket disqualification from hearing cases being handled by any lawyer in a firm was also held necessary where the judge rented a building to the Legal Aid Office.  See Fla. JEAC Op. 07-10.  Therefore Canon 3E(1) requires the disqualification of the inquiring judge from all cases in which the county is represented by the County Attorney or the County Attorney’s staff attorneys.

The Florida Code of Judicial Conduct does not specifically answer whether disqualification is mandated when outside counsel is representing the county.  If such representation is independent of the County Attorney, then clearly disqualification is not required, as the County Attorney and any possible appearance of partiality or prohibited business or economic interests are not involved.  However, if the outside counsel is being directed or supervised by the County Attorney, disqualification would be required as it would be required in the case of any of the County Attorney's staff attorneys.  This option however places the inquiring judge in a difficult position because of the inability to know the working relationship between the outside counsel and the County Attorney.  Therefore, where outside counsel is involved, the inquiring judge should, under the commentary to Fla. Code Jud. Conduct, Canon 3E(1), disclose on the record the business relationship between the County Attorney and the judge, as the parties or their attorneys may consider this information relevant to the question of disqualification.  This way, if the outside attorney is indeed acting independent of the County Attorney, disqualification would not be required.  See Fla. JEAC Op. 05-06.  The judge should also inform the attorneys and parties that recusal or disqualification would be required if the attorney is acting under the supervision of the county attorney or is consulting with the county attorney during the course of the representation, but not otherwise.

In any event disqualification may be waived under Fla. Code Jud. Conduct, Canon 3F.  Thereunder, after the judge has disclosed the basis for the disqualification, the parties and their attorneys may agree that the judge should not be disqualified.  Once the agreement is incorporated into the record and the judge agrees to participate, the judge may participate in the proceedings.

Having answered the posed inquiry, the Committee cautions the inquiring judge that, while the judge is ethically permitted to maintain an interest in real estate or an office building with the judge's former law partner, as discussed in Fla. JEAC Ops. 78-19 and 02-19, if the judge's partners will appear frequently before the judge, the judge's business interest will run afoul of Fla. Code Jud. Conduct, Canon 5D(1)(b).  This Canon's prohibition was established and intended to minimize the potential for disqualification of judges due to their financial and business dealings. See Fla. JEAC Op. 97-33 and 01-11.  Therefore, if the judge's business dealings with former law partners are likely to lead to frequent disqualifications, Fla. Code Jud. Conduct, Canon 5D(4) requires the judge to divest himself or herself of any interest in the building partnership.  This Committee has likewise cautioned judges in past opinions.  See Fla. JEAC Op. 81-02, 82-12, 01-11 and 02-19.

In the event the judge is unable to minimize the number of cases in which the judge’s partners appear, resulting  in the judge’s disqualification due to the ownership interest in the building partnership, the inquiring judge must divest itself from the property as soon as can be done without serious financial detriment.

REFERENCES

Fla. Code Jud. Conduct, Canons 3E(1), 3E(1)(c), 3F, 5, 5A, 5D(1), 5D(1)(b), 5D(4) 

Fla. JEAC Op. 78-19, 81-02, 82-12, 97-33, 01-05, 01-11, 02-19, 05-06, 07-02, 07-10

_____________

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 T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Judge José Rodriguez, Judge C. McFerrin Smith III, 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)