FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-17
Date of Issue: September 22, 2017

ISSUE

Whether a judge who has recently assumed the bench is required to self-recuse from presiding over cases in which a party was until recently a client of the judge?

ANSWER: No, unless the judge’s impartiality might reasonably be questioned.

FACTS

The inquiring judge took office within the past year. The judge is presiding over mortgage foreclosure cases, some of which involve institutional trustees (on behalf of a trust) as the named Plaintiffs. Prior to taking the bench, the judge was hired by a loan servicer on behalf of such institutional trustees who brought suit on behalf of trusts. Some cases the judge may preside over may involve the same trustee Plaintiff which the judge formerly represented, although the loan servicer and the trust are different. Essentially, the loan servicer is different, and the trust is different, but the institutional trustee is the same. The judge always dealt solely with the loan servicer and never directly with the named trustee/Plaintiff. No socializing with the loan servicer or trustee Plaintiff occurred.

The judge inquires as to the appropriateness of presiding over cases in which the judge’s former client (i.e., the trustee/Plaintiff named in the lawsuit) has a different loan servicer than the servicer which previously retained the judge on behalf of the same trustee. The judge has wisely already decided to self-recuse for a minimum of two (2) years from any case in which the judge or the judge’s law firm was/is involved, and will be disclosing the prior relationship in all other cases.

 

DISCUSSION

Canon 3E(1) of the Code of Judicial Conduct mandates disqualification on the judge’s own motion “in a proceeding in which the judge’s impartiality might reasonably be questioned . . ." As pointed out in Perona vs. Fort Pierce/Port St. Lucie Tribune, 763 So. 2d 1188 (Fla. 4th DCA 2000), this Canon does not specifically list former representation in the examples of grounds for self-disqualification.

In Florida Judicial Ethics Committee Opinion 05-05, the Committee opined that disqualification was not mandated where the judge was presiding over a case in which a party was a former client of the judge, and the judge had assumed the bench four (4) years earlier. (The Committee did however recommend disclosure of such relationship, and noted that different issues were involved in the litigation.)

In the inquiry at hand, disqualification may be required if the judge determines that the mere recency of assuming the bench would cause parties to question the judge’s impartiality. As guidance on such a determination, the Committee suggests consideration of several factors set forth in Florida Judicial Ethics Committee Opinion 12-08, i.e., the nature and extent of the relationship between the judge and former client, any financial significance derived from the former client, the level of contested issues in the prior litigation, and whether the judge was privy to any information which would affect the judge’s ability to be fair and impartial.

In this Committee’s opinion, the mere fact that the former representation may have involved a different third-party loan servicer than the one which is servicing a mortgage on behalf of the same named trustee/Plaintiff in a case pending before the judge is of no significant consequence. The cautions in Canon 2 and 3E clearly still apply.

In addition to the dictates of Canon 3E, the judge must also consider objectively whether disqualification is required under the “reasonable minds” test in determining any appearance of impropriety set forth in Canon 2 of the Code. See Fla. JEAC Op. 12-37. In sum, the decision to recuse under the circumstances involved in this inquiry is a “personal and case specific” decision. See Fla. JEAC Op. 15-14.

 

REFERENCES

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

Fla. Code of Jud. Conduct, Canons 2 and 3E(1)

Fla. JEAC Ops. 05-05, 12-08, 12-37, 15-14

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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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Miguel de la O, Chair, Judicial Ethics Advisory Committee, Eleventh Circuit, Richard E. Gerstein Justice Building, 1351 N.W. 12th Street, Room 424, Miami, FL 33125.

Participating Members:
Judge Michael F. Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, and Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


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