FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-37
Date of Issue: December 10, 2012

ISSUES

1. Must a judge recuse from all cases involving a bank whose loan collection official is the judge’s close personal friend, whether or not the bank official appears in the case as a witness or bank representative, where the official is a member of a local social club to which the judge belonged until three years ago and the official frequently socializes with the judge and the judge’s spouse in each other’s homes, around town and while boating?

ANSWER: No, but the judge must recuse from any cases in which the judge’s friend appears as a party, witness or representative of the bank, or any case in which the judge’s impartiality might reasonably be questioned.

2. If the judge is not required to recuse from the bank’s cases, must the judge disclose the relationship to the parties in cases involving the bank?

ANSWER: Yes.

3. Must a judge recuse from cases involving the attorney and law firm which represented the judge, the judge’s mother, and the judge’s brother in a personal injury case which settled without going to trial?

ANSWER: Yes, for a reasonable period of time.

4. Must the judge, upon no longer being required to recuse from cases involving the attorney and law firm, disclose that relationship to the parties in a case in which that attorney or law firm appears?

ANSWER: Yes, for a reasonable period of time.

FACTS

The inquiring trial judge is a friend of the sole or primary loan collection officer at a local bank.  The judge and the friend were both members of a local social group until the judge resigned from the group approximately three years ago.  The judge and the friend frequently socialize in each other’s homes with their spouses and around town and while boating in excess of a dozen times each year.  The bank appears in court on a variety of matters, including collections, foreclosures, and repossessions.  The judge’s friend has never appeared before the judge as a witness or bank representative.    

Historically, the judge has been recusing from the bank’s cases without requiring a hearing.1  Recently, the judge granted a motion to disqualify from a case in which the bank was a party, wherein the motion asserted essentially that the judge “had a past and ongoing social relationship” with the bank’s primary or sole collection officer.  The judge asks if recusal is required or whether the judge may simply disclose the relationship in all future cases in which the Bank is a party and then rule on any motions to disqualify which may be filed.

In an unrelated inquiry, the judge states that, until recently, a local insurance defense attorney and the attorney’s law firm represented the inquiring judge, the judge’s mother, and the judge’s brother in a personal injury case against them.  The case settled without going to trial.  The judge has been recusing from all cases involving that firm without a hearing and plans to do so for two years after the firm concluded its representation of the judge and the judge’s family members.  The judge asks whether recusal is required in such circumstances without a motion to disqualify or hearing.  The judge further asks how long it is necessary to disclose the representation by the attorney and the firm in cases where the attorney or the firm appears.

DISCUSSION

Canon 2 of the Florida Code of Judicial Conduct states:  “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.”  Canon 2A states:  “A judge    . . . shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  The Commentary to Canon 2 notes:  “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.”2

Canon 3B(1) states:  “A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.”   Canon 3E sets forth the circumstances under which disqualification is required.  Canon 3E(1) states:  “A judge shall disqualify himself or herself in a proceeding in which a judge’s impartiality might reasonably be questioned.”  The Commentary to Canon 3E(1) states:  “Under 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.”

In making decisions regarding disqualification, the Supreme Court of Florida, in the case of In re Frank, 753 So. 2d 1228 (Fla. 2000), gave Florida judges the following guidance:

Judges must do all that is reasonably necessary to minimize the appearance of impropriety.  They must remain cognizant of the fact that even in situations where they personally believe that their judgment would not be colored, public perception may differ.

Id. at 1240.  Although In re Frankinvolved an appellate judge, the Supreme Court’s discussion of Canon 3E appears to be equally applicable to trial judges.

The first inquiry is whether Canon 3E(1) requires disqualification because of any personal bias.  This is a subjective matter to be determined by the judge.  The Committee believes the judge – who is cognizant of all the facts and the judge’s own personal beliefs, opinions, and biases – is in the best position to make that determination.  However, even if the judge does not believe disqualification is required due to any personal bias, the inquiry does not end there.  The judge also must consider objectively whether disqualification is required.

The Commentaries to Canons 2 and 3E(1) quoted above conjoin in this determination.  The judge is disqualified if “the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired” or “the judge’s impartiality might reasonably be questioned.”

Applying the objective test, the Committee believes the judge should not preside over cases in which the judge’s personal friend is a party, witness, or bank representative.   Anyone aware of the close personal relationship between the judge and the judge’s close friend, and the frequent times they and their spouses socialize, reasonably would believe the judge could not be impartial in such a case.

However, the Committee believes the judge is not necessarily disqualified from presiding over all cases involving the bank.  The determination must be made on a case-by-case basis.  For example, if the case involved a collection issue in which the friend’s conduct or the friend’s staff’s conduct was material, disqualification would seem appropriate.  However, if the case was over a boundary dispute relative to a bank branch with which the friend had no involvement, then disqualification would appear not to be required.

Nevertheless, even though disqualification may not be required in some cases, the judge still has a duty to disclose facts and information relevant to the parties’ consideration of whether or not the judge should be disqualified.   The Commentary to Canon 3E(1) states, in pertinent part:

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.

In In re Frank, the Supreme Court noted the distinction between a duty to disclose and a duty to disqualify, and concluded that different standards exist for disclosure and disqualification. The Court stated:

Specifically, because 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,” it appears that the standard for disclosure is lower.  In other words, a judge should disclose information in circumstances even where disqualification may not be required.

In re Frank, 753 So. 2d at 1339.

Thus, if the judge believes recusal is not required in a particular case involving the bank, i.e., the judge’s friend is not a party, witness or bank representative, the judge must disclose on the record the judge’s close personal relationship with the bank official, whether or not it is legally sufficient to sustain a motion for disqualification.  This will permit the parties to decide whether to file a motion to disqualify the judge pursuant to Canon 3E(1), section 38.10, Florida Statutes (2012), and Rule 2.330, Fla. R. Jud. Admin. (2012).3 Additionally, this will permit the parties to consider waiving any such disqualification in accordance with Canon 3F.

As to the third issue, the inquiring judge is required, for a reasonable period of time, to recuse from all cases involving the attorney and the law firm which represented the judge and the judge’s family in the personal injury case.  See, e.g., Fla. JEAC Ops. 99-13 and 05-15.  In Fla. JEAC Op. 04-06, the Committee concluded that two years was a reasonable period of time for a judge to recuse from 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.”

In Fla. JEAC Op. 01-17, the Committee observed that a judge is disqualified from hearing cases in which one of the parties was represented by a law firm currently representing the judge’s spouse’s law firm in a malpractice action.  The Committee further opined that, for a reasonable time after the representation is concluded, the judge must at least disclose this relationship to the parties in a suit before the judge if that firm is representing one of the parties.  The Committee noted the distinction between “disclosure” and “disqualification,” that disclosure does not necessarily require disqualification pursuant to Canon 3E, that different standards govern disqualification and disclosure, and that the standard for disclosure is lower.  See Fla. JEAC Op. 01-17 (citing In re Frank).

The Committee believes that the inquiring judge should make a disclosure of the prior attorney-client relationship for a reasonable period of time following the conclusion of the law firm’s representation.  This 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.  This Committee previously has suggested that a reasonable period of time is from several months to one year, depending upon the unique facts and circumstances of the representation.  Fla. JEAC Ops. 86-09 and 93-19.

 

REFERENCES

§ 38.10, Fla. Stat. (2012).

Rule 2.330, Fla. R. Jud. Admin. (2012).

In re Frank, 753 So. 2d 1228 (Fla. 2000).

Stevens v. Americana Healthcare Corporation of Naples, 919 So. 2d 713, 715-716 (Fla. 2d DCA 2006).

Fla. Code Jud. Conduct, Canons 2, 2A, 3B(1), 3E, 3E(1), 3F.

Fla. JEAC Ops. 86-09, 93-19, 99-13, 01-17, 04-06, 05-15.

_____________


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 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 the Committee Chair: Judge Jonathan D. Gerber, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa,  Patricia E. Lowry, Esquire, Judge Michelle Morley, Judge Richard R. Townsend, Judge Dorothy L. Vaccaro. 


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator

 

1. There is a significant difference between recusal and disqualification, which is the formal procedure described in Chapter 38, Florida Statutes, Rule 2.330, Florida Rules of Judicial Administration, and Canon 3E of the Code of Judicial Conduct.  Recusal, not formally recognized by current Florida statutes or Rules of Court, is a common law procedure for a judge to remove himself/herself from a particular case. Generally there is no need for a hearing before the judge enters an order of recusal.  The judge against whom an initial motion to disqualify is directed must timely determine only the legal sufficiency of the motion and not pass on the truth of the matters asserted.  No hearing is required, nor even appropriate in most cases, on a motion to disqualify. See Rule 2.330(f), supra.

2. “The text of the Canons and Sections . . . is authoritative.  The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections.  The Commentary is not intended as a statement of additional rules.”  Preamble, Fla. Code Jud. Conduct.

3. While a judge’s disclosure of a social or personal relationship with a party or a lawyer for a party does not automatically trigger an obligation to disqualify upon a proper motion, where the trial judge invited counsel to file a motion for disqualification and indicated the motion would be granted, the judge erred in refusing to grant the motion.  Stevens v. Americana Healthcare Corporation of Naples, 919 So. 2d 713, 715-716 (Fla. 2d DCA 2006).