FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-03
Date of Issue: February 4, 2018

ISSUES

1. Whether a judge must recuse based on information that an attorney who regularly appears before the judge is “thinking” of running against the judge.

ANSWER: No, unless a personal bias or prejudice against the attorney or the attorney’s client has developed.

2. Whether the judge may ask the attorney directly whether the attorney intends to run against the judge.

ANSWER: No.

FACTS

The inquiring judge has received “credible” information that an attorney who appears before the judge on a regular basis is “thinking” about running against the judge in the upcoming election cycle.

The judge also notes that there is a pending dispute between the attorney’s family and the judge’s parents, the origin of which occurred “a couple of years ago.” The judge states that there is no issue between the judge and the attorney over the matter; nor has there ever been a related recusal or motion to disqualify.

The judge reports that the community in which the judge sits is very small, and that the attorney appears in front of the judge frequently representing the same client. The judge reports having no feeling of personal bias against the client, but is concerned about the appearance of impropriety. The judge is also concerned about the impact recusal would have on the dockets of the other judges in the jurisdiction in which the judge sits.

 

DISCUSSION

The judge’s inquiry requires examination and discussion of several Canons of the Florida Code of Judicial Conduct, specifically Canons 2A, 2B and 3E(1).

Canon 2A provides in part that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2B further admonishes that a judge “shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment.”

Canon 3E(1) requires that a judge “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer . . .”

In Florida Judicial Ethics Advisory Committee Opinion 84-12, this Committee addressed the issue of whether a judge must disqualify in all cases in which an attorney has “announced the intention” to oppose the judge for reelection. There, the Committee determined that the judge should disqualify in cases involving the judge’s political opponent. More recently, the Arizona Judicial Ethics Advisory Committee addressed the same issue and reached the same conclusion. Arizona Judicial Ethics Advisory Committee Opinion 04-02 (also noting that remittal was possible).

In the present inquiry however, the attorney has not “announced the intention” to oppose the judge for reelection. The information conveyed to the judge is merely that the attorney is “thinking” about running against the judge.

It does not appear that this Committee has previously addressed the issue of whether disqualification is required when a judge learns that an attorney is merely thinking about running against the judge. In Arizona Judicial Ethics Advisory Committee Opinion 04-02, however, the Arizona committee cautioned that its opinion was restricted to an “announced candidacy.” (Emphasis in original.) The Arizona Judicial Ethics Advisory Committee counseled that “Mere rumors of a candidacy would not be sufficient to require disqualification, absent either personal bias, prejudice, or other extraordinary circumstances which raise a reasonable question as to the judge’s impartiality.”

The Arizona Judicial Ethics Advisory Committee also addressed the question of what happens when the rumors are confirmed to the judge by the potential opponent. Noting that an objective rather than subjective standard applies, the committee concluded that “simple notice from the potential attorney candidate to a judge that the attorney will be a candidate during an upcoming election would not be a circumstance in which the judge’s impartiality would reasonably be questioned and, therefore, recusal would not be required at that point. Of course, if the judge developed a personal bias or prejudice from the notice of the candidacy, the judge would still have the responsibility to recuse himself.”

We agree with the Arizona Judicial Ethics Advisory Committee. We do not believe that either rumors or direct statements from an attorney to others that the attorney is “thinking” about running against the judge, or notice directly from the attorney to the judge that the attorney is “thinking” about running or intends to run, would reasonably draw into question the judge’s impartiality. The inquiring judge here has stated expressly that the judge has not developed a bias against the attorney’s client but is merely concerned about the appearance of impropriety. We conclude that until the attorney formally announces opposition to the judge, there is not a reasonable basis to question the judge’s impartiality that needs to be addressed by the judge.

Further, we do not believe that our conclusion is impacted by the dispute between the attorney’s family and the judge’s parents. Even though the judge sits in a small community, the judge has represented that this is a non-issue from the judge’s perspective, and the Code specifically admonishes all judges that their judicial conduct and judgment should not be impacted by family relationships. Canon 2B. Moreover, this dispute has not to date been the subject of a recusal or motion to disqualify despite the fact that there has been an issue between the two families for two years. We do not believe that this dispute presents any type of “extraordinary circumstances” that would create a reasonable question as to the judge’s impartiality here.

The Committee cautions however that if at any point in time the judge believes that a personal bias or prejudice has developed against the attorney or the attorney’s client – whether as a result of the potential opposition in the upcoming election, the dispute between the families, or both - the judge should recuse in accordance with Canon 3E(1).

Finally, the Committee counsels the judge not to confront the attorney as to whether the attorney intends to run against the judge. As stated above, even if the attorney were to confirm that the attorney is thinking about running against the judge, or confirms the intent to announce opposition, that would not yet trigger a duty to disqualify. Further, the attorney may misinterpret the judge’s intentions in raising the issue, which could result in the inadvertent creation of a basis for a motion to disqualify where one did not previously exist. Because the attorney frequently appears before the judge and disqualification may place an undue burden on the other judges in the jurisdiction, the judge should avoid conduct that could prematurely create a basis for disqualification. See Canon 5A (A judge shall conduct all extra-judicial activities so that they do not lead to frequent disqualification.)

 

REFERENCES

Fla. Code Jud. Conduct, Canons 2A, 2B, 3E(1), 5A.

Fla. JEAC Op. 84-12.

Ariz. JEAC Op. 04-02.

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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, Miami-Dade County Courthouse, 73 W. Flagler Street, Room 1407, Miami, FL 33130.

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