FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-18
Date of Issue: July 23, 2018

ISSUE

Must a judge disclose to an attorney that the judge has filed a bar complaint against that attorney?

ANSWER: No. However, the judge may be required to disclose such filing in certain cases to the parties which would necessitate disclosure to the reported attorney.

FACTS

The inquiring judge recently filed a complaint with the Florida Bar against an attorney who appears regularly before the Court. The judge was informed by the Bar representative that since the complaint was based on a "filing" made by the attorney, the Bar could act as the petitioner and the judge would not be named as the complainant. The Bar representative informed the inquiring judge that proceeding in this way is a courtesy extended to members of the judiciary.

The inquiring judge suggests that if he/she is not named as the petitioner in the complaint, the attorney will not know that the inquiring judge made the complaint unless the judge discloses that fact to the attorney. The judge inquires as to whether he/she is required by the Code of Judicial Ethics to disclose to the attorney that the judge filed a complaint with the Florida Bar against that attorney.

 

DISCUSSION

Canon 3(D)(2) of the Code of Judicial Conduct requires “[a] judge who receives information or has actual knowledge that a substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar to take appropriate action.” There is no provision in the Code of Judicial Conduct that requires a judge to disclose the filing of a bar complaint to the attorney. A judge, however, may be required to report the filing to the parties in certain circumstances, which would necessarily cause the reported attorney to be notified.

Canon 3(E)(1) provides as follows:

(1) A judge shall 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, or personal knowledge of disputed evidentiary facts concerning the proceeding.

The commentary to Canon 3(E)(1) provides, in pertinent part: “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 the disqualification.”

Canon 3(E)(1)(a) speaks in terms of a judge disqualifying himself or herself in a proceeding (emphasis added). A judge merely reporting the perceived unprofessional conduct of an attorney to the Florida Bar, in and of itself, is not a legally sufficient reason to support a motion for disqualification. See 5-H Corp. v. Padovano, 708 So. 2d 244 (Fla. 1997); Birotte v. State, 795 So. 2d 112 (Fla. 4th DCA 2001). A duty to disclose, however, is broader than the duty to disqualify. JEAC Op. 05-16. If the filed bar complaint arises from the attorney’s representation in a pending case, the judge would have the duty to disclose to the parties that he/she had reported the attorney to the Florida Bar. JEAC Op. 05-16. “The fact that a judge makes a disclosure is not necessarily a basis for disqualification. The issue should be addressed on a case-by-case basis.” JEAC Op. 05-16 citing W.I. v. State, 696 So. 2d 457 (Fla. 4th DCA 1997).

The issue of whether a judge must disclose the filing of a bar complaint to the parties was specifically addressed by this committee in JEAC Op. 05-16. The majority of the committee determined that a judge, who files a bar complaint against an attorney for actions of the attorney on a case pending before the judge, should disclose the filing of the bar complaint to the parties. See JEAC Op. 05-16. The committee based its opinion on the commentary to Canon 3(E)(1) which provides that a judge should disclose information to the parties that might be relevant even if the judge believes there is no basis for disqualification. Disclosure to the parties would by necessity require notification to the reported attorney under these circumstances.

The committee further addressed in JEAC Op. 05-16, whether the judge was required to disclose such filing in subsequent cases in which the attorney appears before the reporting judge. The majority of the members of the committee determined that the inquiring judge did not have to disclose the filing of the bar complaint. This opinion appears to be based only on the judge's mere reporting of the attorney's misconduct to the Bar, excluding any other factors that could call into question the judge's personal bias or prejudice concerning the reported attorney.

A judge's mere reporting of perceived unprofessional conduct to the Florida Bar, in and of itself, is not legally sufficient to support a motion for disqualification. See 5-H Corp. v. Padovano, 708 So. 2d at 248 (emphasis added). However, it is not possible to determine in each and every circumstance whether other factors may exist that, coupled with the judge's filing of a complaint with the Bar against the attorney, might support a motion for disqualification. As such, the issue of disclosure to the parties in subsequent litigation and essentially to the reported attorney should be addressed on a case-by-case basis. See Kline v. JRD Mgmt. Corp., 165 So. 3d 812, 814-15 (Fla. 1st DCA 2015).

This does not suggest that the judge is required to disclose the filing of the complaint to the attorney, absent the attorney appearing before the judge in the pending case in which the attorney’s actions were reported, or in subsequent cases under circumstances beyond the judge's mere filing of the complaint with the Bar.

To the extent that this opinion differs from the committee's opinion in JEAC Op. 05-16, the same is distinguished by factors beyond the mere reporting of an attorney that would potentially call into question any personal bias or prejudice the judge may have concerning the reported attorney.

 

REFERENCES

Canon 3(D)(2), Florida Code of Judicial Conduct
Canon 3(E)(1), Florida Code of Judicial Conduct
Canon 3(E(1)(a), Florida Code of Judicial Conduct
JEAC Op. 05-16
5-H Corp. v. Padovano, 708 So. 2d 244 (Fla. 1997)
Birotte v. State, 795 So. 2d 112 (Fla. 4th DCA 2001)
W.I. v. State, 696 So. 2d 457 (Fla. 4th DCA 1997)
Kline v. JRD Mgmt. Corp., 165 So. 3d 812 (Fla. 1st DCA 2015)

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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 James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL  32114.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge Michael Raiden, and Charles Reynolds, Esquire.


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