FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2013-02
Date of Issue: January 25, 2013
1. Must a judge, who consulted with but did not hire an attorney from a large law firm to represent the judge a year ago, recuse from cases where the attorney or the firm appear as counsel?
2. Must a judge disclose that the judge consulted the attorney or law firm in cases where the attorney or law firm represents a party?
ANSWER: Must be decided on a case-by-case basis.
A year ago, the inquiring judge consulted an attorney from a very large law firm about a possible claim. The claim was investigated but no lawsuit was ever filed and nothing came of the consultation. There is no social relationship between the inquiring judge and the attorney or any attorney in the firm.
Canon 3E(1) states that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” The commentary to Canon 3E(1) states that a “judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Canon 3E (1) apply.” Section 38.05, Florida Statutes (2011), and Florida Rule of Judicial Administration 2.330(i) (2011) authorize a judge to recuse from a case on the judge’s own initiative. Consequently, the decision to recuse based upon Canon 3E(1) is left up to each judge pursuant to Section 38.05 and Rule 2.330(i).
Whether or not a judge decides to recuse based upon Canon 3E(1), the commentary to Canon 3E(1) requires that a judge disclose on the record information which the judge believes the parties or their attorneys might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. Whether information would be considered relevant by the parties or their attorneys on the issue of disqualification must be decided by the judge on a case-by-case basis. Factors that the judge should consider on the issue of disclosure include, but are not limited to, the nature of the claim, the monetary value of the claim, whether or not the judge paid for the consultation, whether or not the consultation had any effect upon the disposition of the claim, and the current relationship between the judge and the attorney/law firm.
In Fla. JEAC Op. 86-9, the Committee opined that a judge was not prohibited from hearing cases involving attorneys who represented the judge and the judge’s family after a reasonable period of time passed from the time the action had been concluded. Similarly, in Fla. JEAC Op. 93-17, the Committee’s majority opined that a judge who had been represented by an attorney three years before in a now-closed case did not necessarily have to disclose this prior representation. However, the Committee’s majority stated that if the judge maintained “strong social ties with the attorney or the prior representation was in a ‘high profile’ case or one of great personal or monetary significance” to the judge or the judge’s former lawyer, “disclosure would be appropriate or necessary . . . [t]he question must be answered on a case by case basis.” In Fla. JEAC Op. 01-17, the Committee opined that disqualification was not required when a party was represented by a law firm which previously represented the judge’s spouse’s law firm in a legal malpractice action. However, the Committee opined that disclosure was appropriate for a reasonable period of time.
Here, the inquiring judge consulted an attorney from a very large law firm about a possible claim. The claim was investigated but no lawsuit was ever filed and nothing came of the consultation. That was a year ago. No social relationship has developed between the inquiring judge and the attorney whom the judge consulted or the attorney’s firm. The Committee unanimously opines that the inquiring judge need not recuse automatically from any cases in which the attorney or that firm files an appearance.
Nine members of the Committee opine that the need to disclose the inquiring judge’s consultation with the attorney/law firm, in cases where either the attorney or the law firm appears before the judge, must be decided on a case-by-case basis based on the factors stated above. Three members of the Committee opine that the judge should be required to disclose the consultation for a reasonable period of time.
§ 38.05, Fla. Stat. (2011).
Rule 2.330(i), Fla. R. Jud. Admin. (2011).
Fla. Code Jud. Conduct Canon 3E(1).
Fla. JEAC Ops. 86-9, 93-17, 01-17.
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.
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