FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2015-14
Date of Issue: December 9, 2015

ISSUES

1. Whether the inquiring judge must recuse himself or herself from all mortgage foreclosure cases pending before the judge.

ANSWER: No.

2. If the inquiring judge does not have to recuse from all pending mortgage foreclosure cases, must the inquiring judge recuse from all cases involving lawyers, lenders, or assignees involved in the judge’s residential mortgage foreclosure cases?

ANSWER: No.

3. If recusal is not mandatory, is recusal nevertheless prudent?

ANSWER: Only if the inquiring judge determines that the judge has a personal bias or prejudice.

4. Whether mandatory or prudent, for what period of time should recusal be employed?

ANSWER: This question is moot because recusal is not warranted.

5. If recusal is neither mandatory nor warranted as prudent, is disclosure required in all residential foreclosure cases?

ANSWER: No.

6. If disclosure is not required in all residential foreclosure cases, is disclosure nevertheless required in those cases involving any of the lawyers, lenders, or assignees involved in the inquiring judge’s residential foreclosure cases?

ANSWER: Yes.

7. If disclosure is not required, is it nevertheless prudent in all pending foreclosure cases?

ANSWER: Yes.

8. Whether required or prudent, for what period of time should the inquiring judge make a disclosure?

ANSWER: Until no reasonable person would consider the information relevant to a determination of the judge’s impartiality.

 

FACTS

Approximately five years ago, the inquiring judge (and the judge’s spouse) were defendants in two lawsuits to foreclose on two residential mortgages the inquiring judge had taken on the family home. The foreclosure cases were resolved by short sale and the lawsuits were voluntarily dismissed a little less than four years ago.

The inquiring judge has now rotated back into the circuit-civil division where the judge sometimes handles older, and generally contentious, residential foreclosure cases. The judge inquires whether recusal is required from all residential mortgage cases, and, if not, whether disclosure is mandatory or merely prudent.

 

DISCUSSION

The issues raised by the inquiring judge are addressed by the Florida Code of Judicial Conduct, Canon 3. “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” Canon 3E(1). “The test is whether a disinterested person aware of the relevant facts would reasonably question the judge’s impartiality.” Fla. JEAC Op. 92-39.

 

RECUSAL

The inquiring judge is not required to recuse himself for all residential mortgage cases by virtue of having been a defendant years ago in a foreclosure action. Although no Florida Judicial Ethics Advisory Committee Opinion has addressed the specific question raised by the inquiring judge, some prior opinions are instructive.

In Florida Judicial Ethics Advisory Committee Opinion 02-05, the Committee advised the inquiring judge that, although serving in the family division, the judge need not recuse simply because the divorced judge might become involved in post-judgment proceedings with the former spouse regarding the judge’s minor children.

In Florida Judicial Ethics Advisory Committee Opinion 11-02, we advised that the judge could hear mortgage foreclosure matters as a senior judge, even though, as a mortgagee on various properties, the judge might conceivably have to initiate foreclosure proceedings against a mortgagor.

In Florida Judicial Ethics Advisory Committee Opinion 12-09, the Committee was asked whether a judge currently named as a defendant in a mortgagee foreclosure proceeding was required to recuse from all residential foreclosure proceedings. The Committee concluded that the judge need not recuse because a judge’s “impartiality in a case may not reasonably be questioned where a litigant sues to foreclose a residential mortgage and the presiding judge in the case and the judge’s spouse are currently tenants/defendants in a residential condominium mortgage foreclosure proceeding.”

Our precedents establish that neither prospective involvement as a plaintiff in a mortgage foreclosure, nor current involvement as a tenant/defendant in a mortgage foreclosure, mandate recusal by a judge. Therefore, on the facts presented to the Committee by the inquiring judge - in particular the fact that the foreclosure occurred years before - the inquiring judge is not required to recuse in all cases concerning residential mortgage foreclosures.

Nor is the inquiring judge required to recuse in all cases involving the same lawyers, lenders, or assignees involved in the judge’s residential foreclosure unless the judge determines that the judge has a personal bias or prejudice against the lawyers, lenders, or assignees. In Florida Judicial Ethics Advisory Committee Opinion 97-12, the Committee advised that the decision to recuse, from cases involving a lawyer who represented defendants in a case where the judge was a plaintiff, was a “personal and case specific” decision.

Under Canon 3E, and prior opinions, automatic recusal is not required under the facts delineated here. Nevertheless, the Committee would advise the inquiring judge to make a reasoned determination whether, were she to sit on cases involving the former opposing counsel, her impartiality might reasonably be questioned. She must also determine for herself whether she has any personal bias or prejudice concerning these lawyers.

Id. Likewise, here, the inquiring judge must decide whether prudence militates in favor of recusal.

 

DISCLOSURE

The inquiring judge is not obligated to disclose the mortgage foreclosure proceedings that occurred nearly four years ago. In cases involving a judge’s personal involvement in litigation, this Committee has only recommended disclosure during the time a judge is involved in the litigation and for a reasonable period thereafter. See Fla. JEAC Op. 12-09 (“While the judge is involved in the foreclosure litigation as a tenant/defendant, and for a reasonable time thereafter, the judge has a duty, in foreclosure proceedings assigned to the judge, to disclose the facts and circumstances of the judge’s own litigation.”); see also Fla. JEAC Op. 02-05 (“[I]f the judge’s personal matter does result in litigation and if attorneys representing the judge or his former spouse appear before the judge, then disclosure or recusal is warranted.”).

Some guidance for determining whether a reasonable period of time has elapsed is found in Florida Judicial Ethics Advisory Committee Opinion 95-16, where the Committee advised that after the passage of a year, it is proper for a judge to hear cases involving a lawyer or law firm that represented the judge in litigation. See Fla. JEAC Op. 01-17 (“This Committee believes that the inquiring judge should make a disclosure of the prior 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. A reasonable period of time has previously been suggested by this Committee to be from several months to one year, depending upon the unique facts and circumstances of the representation.”).

However, in the event the same lawyers, lenders, or assignees, appear before the judge, the judge should disclose the nature of the judge’s prior dealings with the lawyers, lenders, or assignees. In Florida Judicial Ethics Advisory Committee Opinion 12-08, the Committee addressed a situation where the judge, as a lawyer, had represented a client in a divorce proceeding seven years earlier. The opposing party/spouse is a lawyer who now practices before the judge. The Committee advised the judge to disclose the prior representation when this lawyer appeared before the judge.

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.

Fla. JEAC Op. 12-08 (citations omitted).

The question of how long must the inquiring judge disclose the prior litigation if the same lawyers, lenders, or assignees, appear before the judge is difficult to answer with precision. In Florida Judicial Ethics Advisory Committee Opinion 12-08, the Committee advised the judge to disclose dealings with a particular lawyer even seven years after the fact. However, in Florida Judicial Ethics Advisory Committee Opinion 95-15, disclosure was not required eight years after the lawyer’s representation of the judge terminated because there was no indication that the representation concerned a matter that was highly contested. Therefore, the inquiring judge must determine how much time must elapse before no reasonable person would find the prior mortgage foreclosure litigation to be relevant to a determination of whether the judge’s impartiality might reasonably be questioned in a pending matter involving the same lawyers, lenders, or assignees.

 

CONCLUSION

For the foregoing reasons, the inquiring judge need not recuse from all mortgage foreclosure cases, nor from all cases involving the same lawyers, lenders, or assignees involved in the judge’s residential foreclosure. Nor does the judge need to disclose the mortgage foreclosures filed against the judge’s personal residence. However, if the same lawyers, lenders, or assignees appear before the judge, the judge should disclose the prior litigation until such time as no reasonable person would find the disclosure relevant to a determination of whether the judge’s impartiality might reasonably be questioned.

 

REFERENCES

Fla. Code Jud. Conduct, Canon 3E(1).

Fla. JEAC Ops. 12-09, 12-08, 11-02, 02-05, 01-17, 97-12, 95-16, 95-15, 92-39.

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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 to 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.    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 Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Barbara Lagoa, Chair, Judicial Ethics Advisory Committee, Third District Court of Appeal, 2001 S.W. 117th Avenue, Miami, FL 33175.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge Robert T. Benton II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Miguel de la O, Judge Jack Espinosa, Jr., Judge K. Douglas Henderson, Judge Barbara Lagoa, Judge Spencer D. Levine, Patricia E. Lowry, Esquire, and Judge Michael Raiden


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator