FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-08
Date of Issue: March 26, 2012

ISSUES

Whether recusal is required when the inquiring judge was an attorney representing the adverse party of an attorney/litigant over seven (7) years ago?

ANSWER: No, unless the previous contested litigation has affected the judge’s ability to fairly sit in judgment on the current unrelated civil matter.

Whether disclosure is required when the inquiring judge was an attorney representing the adverse party of an attorney/litigant over seven (7) years ago?

ANSWER: Yes.

FACTS

Approximately seven (7) years ago, prior to becoming a judge, the Inquiring Judge represented a client in a dissolution of marriage action.  The adverse party was the client’s wife who was and currently still is a practicing attorney.  The parties to the dissolution were adverse to each other on most every issue.  The wife was represented by counsel as well.  The Inquiring Judge represented this client for a little over a year before being withdrawn by court order from the case.  The Inquiring Judge asks if recusal and/or disclosure are necessary when the attorney/former litigant later appears as an attorney of record in an unrelated case in front of that judge. 

    
DISCUSSION

This opinion is limited to the question presented which is whether the Inquiring Judge is required on the judge’s own initiative to recuse from the matter.  Based on the facts set forth by the inquiring judge, no motion to disqualify has been filed, and therefore the Committee has not been presented with the content of any such motion, nor would the Committee issue an opinion determining the legal sufficiency of any such motion. 

Rather, this inquiry invokes Canon 3E(1) of the Code of Judicial Conduct which provides that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”  Although the prior  opinions of the Committee on this subject do not involve facts related to this particular set of circumstances,  our opinions suggest  that recusal would not be mandated or required in this setting.  The determination of whether the judge’s impartiality might reasonably be questioned depends on 1) the nature and extent of the relationship between the Inquiring Judge and the former client who is the ex-spouse of the practicing attorney, 2) whether there was any financial or monetary significance to the judge, 3) to what extent  the action was contested,  4) whether any contempt proceedings and/or sanctions were initiated by or against this practicing attorney/litigant during the contested dissolution action, and   5) whether the judge was privy to information about the attorney/former spouse of the judge’s client that would affect the judge’s ability to be fair and impartial in the proceeding currently pending before the judge.   Unless the Inquiring Judge feels that the previous contested litigation has affected the judge’s ability to fairly sit in judgment on the current unrelated civil matter, then recusal is not required.   If, however, for example, the judge acquired information that causes the judge not to be able to give credence to an attorney in a case before the judge, then the judge should recuse.

But the inquiry does not end there. The Committee believes the Inquiring Judge should disclose to the parties and lawyers the past representation on the contested dissolution of marriage, and that   the attorney was the adverse litigant many years earlier.  The Commentary to Canon 3E of the Code of Judicial Conduct discusses the circumstances under which  disclosure is appropriate: “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 the 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.” 

On several occasions the Committee has opined that even when recusal would not be required by the Code, disclosure would be an appropriate and prudent course of action. As stated in the Commentary, each situation must be evaluated on a case-by-case basis.  See Fla. JEAC Op. 01-17 (judicial disclosure appropriate when a party represented by a law firm that previously was represented by the law firm of the judge’s spouse in legal malpractice action, but recusal not mandated); Fla. JEAC Op. 05-05 (judge required to disclose prior attorney-client relationship with a litigant that appears before the judge); Fla. JEAC Op. 09-01 (recusal not required when judge took weekend trip to Maine nine years earlier, but disclosure was appropriate). 

Further,  in Perona vs. Fort Pierce/Port St. Lucie Tribune, 763 So.2d 1188 (Fla. 4th DCA 2000), the Fourth District addressed the issue of judicial disqualification when the judge’s former client appeared before the judge as a litigant. The court held that the judge’s prior representation of a party in a matter not pertaining to the issues involved in the  pending action did not require disqualification of the judge. 

In JEAC Opinion 95-15, the Committee advised that disclosure was not required when an attorney represented a judge in a child custody action eight years earlier.  One member dissented cautioning the judge that nondisclosure may not pass the “St. Pete Times test.”  Unlike the  facts presented by the current inquiry, there was no indication that the matter involved in that inquiry  was highly contested. Based on the facts presented here, however,  the Committee believes that  disclosure would be appropriate.

 

REFERENCES

Perona vs. Fort Pierce/Port St. Lucie Tribune, 763 So.2d 1188 (Fla. 4th DCA 2000).

Fla. Code of Jud. Conduct: Canon 3E,  Commentary to Canon 3E(1).

Fla. JEAC Opinions: 09-01, 05-05, 01-17, 95-15.

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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 Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The 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: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401-6161.

Participating Members:
Judge Roberto Arias, Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge Terry Michael Jones, Judge Barbara Lagoa,  Patricia Lowry, Esquire, Judge Jose Rodriguez, Judge McFerrin Smith, III,  Judge Richard R. Townsend, Judge Dorothy L. Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
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