FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-21
Date of Issue: November 14, 2017

ISSUES

1. Whether a general magistrate must recuse himself/herself from presiding over Marchman Act proceedings in which the attorney appearing before the inquiring magistrate represented the magistrate’s brother-in-law in a Marchman Act case before another general magistrate presiding in the same circuit?

ANSWER: No, unless the inquiring general magistrate determines that he/she has a personal bias or prejudice.

2. If the inquiring general magistrate does not have to recuse from such cases, is disclosure required, and for how long?

ANSWER: Yes, disclosure is required until no reasonable person would consider the information relevant to a determination of the inquiring magistrate’s impartiality.

3. If the attorney who represented the general magistrate’s brother-in-law is employed by the Office of Regional Conflict Counsel, may the general magistrate still preside over Marchman Act cases and assign the Office of Regional Conflict Counsel to represent respondents, provided that the attorney that the general magistrate assigns is not the same individual from the Office of Regional Conflict Counsel who represented the general magistrate’s brother-in-law?

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

4. If recusal is required, how much time should pass before the general magistrate no longer should recuse?

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

5. Whether the general magistrate may order a respondent to attend treatment at a particular facility if the general magistrate’s brother-in-law is a current or was a former patient at the facility?

ANSWER: Yes.

FACTS

The inquiring general magistrate presides over Marchman Act cases in his/her circuit. The attorney that the general magistrate assigns to represent respondents in Marchman Act cases is employed by the Office of Regional Conflict Counsel. This attorney is the same individual who represents all of the respondents in every Marchman Act hearing whether the hearing is set before the inquiring magistrate or one of the other magistrates presiding over Marchman Act cases in the circuit.

The inquiring magistrate is concerned that if his/her brother-in-law should become a respondent in a Marchman Act case before another magistrate, and the attorney who regularly appears before the inquiring magistrate is appointed to represent his/her brother in law, the inquiring magistrate may be required to recuse from all Marchman Act cases in which the attorney who represented the magistrate’s brother-in-law appears before him/her. The magistrate also inquires as to whether disclosure is required and, if so, how long disclosure is necessary. Finally, the magistrate inquires whether he/she may order a respondent to attend treatment at a particular facility if the inquiring magistrate’s brother-in-law is or was a patient at the facility.

 

DISCUSSION

The definitions portion of the Code of Judicial Conduct defines “judge” as follows:

When used herein this term means Article V, Florida Constitution judges and, where applicable, those persons performing judicial functions under the direction or supervision of an Article V judge.

General magistrates clearly fall within this definition. As such, the term “judge” utilized throughout this opinion shall include general magistrates.

The Code of Judicial Conduct does not speak directly to the issue of the necessity for recusal when an attorney appearing before a judge represents the judge or a member of the judge’s family. Past JEAC opinions have relied upon the general provisions in Canons 2 and 3E(1) and the comments thereto in deciding these recusal and disclosure inquiries.

Canon 2 of the Florida Code of Judicial Conduct is titled “A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities.” The commentary to Canon 2 describes the test for appearance of impropriety as “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.”

Canon 3E(1) requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply. This committee has issued a number of opinions on this issue and these opinions turn on the facts of each particular inquiry.

In some opinions, the committee determined that the judge should recuse. See Fla. JEAC Op. 99-13 (Judge should recuse where an attorney from the firm who represents the judge, appears before the judge, because an impermissible appearance of impropriety applies to all members of the attorney’s firm); Fla. JEAC Op. 01-17 (Judge should be 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); Fla. JEAC Op. 05-15 (Judge must recuse when lawyer and/or members of lawyer’s firm who represented judge in civil action appears before the judge); Fla. JEAC Op. 12-37 (Judge was required to recuse from all cases involving the attorney and firm that represented the judge, judge’s mother and brother in a personal injury suit against them).

In other opinions, this committee determined that the judge did not need to recuse. See Fla. JEAC Op. 16-04 (Judge not required to recuse from all Engle progeny cases assigned to the judge where a member of judge’s family brought an Engle progeny suit against a tobacco company within the same judicial circuit but before a different judge, even if some lawyers representing the parties in the judge’s family member’s case appear before the judge); Fla. JEAC Op. 15-14 (Judge not required to recuse on all foreclosure cases involving the same lawyers, lenders, or assignees who were involved in judge’s personal foreclosure case in which judge was a defendant, unless the judge determines that the judge has a personal bias or prejudice against the lawyers, lenders or assignees); Fla. JEAC Op. 11-17 (Judge not required to recuse when attorney appearing before a judge is the spouse of an attorney representing the judge in an unrelated civil matter, where spouses are and always have been in different firms).

This committee has also determined in some opinions that recusal is a personal and specific decision that must be made by the judge. See Fla. JEAC Op. 97-12 (The decision to recuse from cases involving a lawyer who represented defendants in a case in which the judge was a plaintiff was a “personal and specific” decision); Fla. JEAC Op. 13-02 (Judge to decide pursuant to Section 38.l05, Florida Statutes, and Rule 2.330(i) of the Florida Rules of Judicial Administration whether to recuse when attorney appeared before the judge from a large firm that judge consulted with but did not hire, a year prior).

Under Canon 3E and prior opinions, automatic recusal is not required in every case where a lawyer who represented or opposed a judge in the judge’s personal litigation appears before the judge. The test is whether a disinterested person aware of the relevant facts would reasonably question the judge’s impartiality. See Fla. JEAC Op. 92-39.

Florida Judicial Ethics Advisory Committee Opinion 11-17 is instructive. In that opinion, the inquiring judge was being represented by an attorney in a civil matter. The judge inquired as to whether he/she was required to recuse himself/herself from hearing cases in which the spouse of the attorney for the judge appears before the judge when the spouses are and have always been in different firms.

The committee opined that the judge’s impartiality in a case may not be reasonably questioned so long as the judge’s attorney and the attorney’s spouse are not nor have been affiliated with the same firm and the attorney/spouse has no financial stake in the judge’s personal case. The committee reasoned as follows:

At least three considerations dictate this result. First, the judge’s selection of the attorney to represent the judge in the civil matter reflects the judge’s confidence in that attorney’s competence and reputation to handle the matters entrusted to the attorney and does not connote any bias or consideration for the attorney’s spouse’s reputation or competence. Next, the judge’s attorney is obligated to maintain the confidentialities of the attorney-client relationship with the judge and must not divulge those to the attorney spouse, as might occur if the spouses were members of the same firm. Finally, with no financial stake in the outcome of the judge’s case, any material appearance of impropriety resulting from the attorney spouse’s appearance before the judge is dissipated.

In the pending inquiry, the attorney is representing the magistrate’s brother-in-law, not the magistrate. The attorney is not chosen nor paid by the magistrate or the litigants, but is court appointed in every case to represent respondents in all Marchman Act cases. The magistrate has no financial stake in the outcome of the brother-in-law’s case, as there are no financial issues involved. The petitioner is usually a friend or family member of the respondent. The magistrate is not the petitioner in the brother-in-law’s case. Marchman Act proceedings are for the sole purpose of determining whether a person meets the criteria for involuntary placement and treatment from substance abuse and enforcing any orders with respect thereto.

Applying the objective test, this committee is of the opinion that the general magistrate is not required to recuse from presiding over Marchman Act cases or cases wherein the court appointed attorney who regularly appears before the general magistrate represented the general magistrate’s brother-in-law in a Marchman Act case before another magistrate. However, if the general magistrate determines that he/she has a personal bias or prejudice, he/she should recuse from cases involving the brother-in-law’s attorney.

Even though recusal is not required, a magistrate has a duty to disclose facts and information relevant to the parties’ consideration of whether the magistrate should be disqualified, even if the magistrate believes there is no real basis for disqualification. The fact that a magistrate conveys this information does not automatically require the magistrate to be disqualified upon request by either party, but the issue should be resolved on a case by case basis. See Commentary to Canon 3E(1).

Disclosure will permit the parties to decide whether to file a motion to disqualify the magistrate pursuant to Canon 3E(1), Section 38.10, Florida Statutes (2017), and Rule 2.330, Florida Rules of Judicial Administration (2017). Additionally this will permit the parties to consider waiving any such disqualification in accordance with Canon 3F.

The committee is of the opinion that the inquiring magistrate should make a disclosure of this attorney/client relationship involving the magistrate’s brother-in-law for a reasonable period of time during and following the conclusion of said representation. This committee has previously 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, 93-19, 01-17, 11-17, 12-09, 12-37 and 16-04.

Finally, the magistrate inquires as to whether he/she would be allowed to order respondents in Marchman Act cases to receive treatment at the same facility where the magistrate’s brother-in-law is or was receiving treatment. This committee does not believe that this fact would reasonably question the magistrate’s integrity and impartiality or competence, and therefore is of the opinion that the magistrate may still be allowed to order respondents in Marchman Act cases to receive treatment at the same facility.

 

REFERENCES

Fla. Code Jud. Conduct Canons 2 and 3E(1)
Fla. JEAC Ops. 86-09, 92-39, 93-19, 97-12, 99-13, 01-17, 05-15, 11-17, 12-09, 12-37, 13-02, 15-14, 16-04

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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