FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-16
Date of Issue: April 25, 2019

ISSUES

WHETHER A JUDGE WHO IS INVOLVED ROMANTICALLY WITH AN ATTORNEY MUST DISCLOSE THAT RELATIONSHIP IN CASES WHERE ONE SIDE IS REPRESENTED BY THE FIRM THAT HAS A PROFESSIONAL RELATIONSHIP WITH THE ATTORNEY.

ANSWER: Yes.

WHETHER THE JUDGE MUST ALSO AUTOMATICALLY RECUSE FROM CASES INVOLVING THE FIRM WITH WHOM THE ATTORNEY IS ASSOCIATED.

ANSWER: No, but only so long as it is clearly established that the attorney derives no personal benefit from cases handled by other members of the firm and the judge is careful to observe strict objectivity in ruling on any motions to disqualify that may stem from revealing the relationship.

 

FACTS

The inquiring judge, who presides over a civil division, has developed a romantic relationship with an attorney who is associated with a law firm that regularly litigates in the judge’s division. We are given to understand that this relationship is of fairly recent commencement. The judge recognizes that recusal is mandatory in any cases handled by the attorney personally, but asks for guidance regarding cases handled solely by other lawyers from the same firm.

The inquiry provides the following additional information regarding the attorney’s relationship with the firm. The attorney is neither a partner nor a shareholder and does not share in the general proceeds of the firm’s revenue. Instead, the attorney keeps the revenue earned from the attorney’s own cases and then reimburses the firm for such expenses as support salaries. The judge acknowledges that circumstances could change whereby the attorney’s compensation could be handled in a different fashion, such as receiving bonuses or becoming a partner or shareholder, but such is not presently the case and we confine our analysis to the status quo.

 

DISCUSSION

(a) Introduction

The recent controversy over “friending” on the social website Facebook has highlighted the potential for an appearance of bias, even where none may actually exist, on the part of judges who have personal relationships with attorneys who practice before them. See Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Association, -So. 3d -, 43 Fla. Law Weekly S565 (Fla. Nov. 15, 2018).1 This and other opinions, including many issued by this Committee, emphasize that a perception of bias must be viewed from the standpoint of a reasonable person regardless of how strongly a judge may believe in his or her own impartiality. Fla. Code of Jud. Conduct, Canon 2B cautions that a judge “shall not allow family, social . . . or other relationships to influence the judge’s judicial conduct or judgment,” and Canon 3E(1), after announcing the general principle that a judge should not hear cases “in which the judge’s impartiality might reasonably be questioned,” provides a number of examples of potential conflicts which may call for disclosure at least and possibly disqualification as well. Further, even where disqualification may not be called for across the board, Canon 3E(1) directs judges to disclose on the record any information that the judge believes the parties or their lawyers might consider relevant even if the judge personally does not believe there is a real basis for disqualification.

The law is quite clear with respect to a judge’s duties when a family member is the source of the potential conflict, and while a romantic companion is not a family member as defined in the Code, we choose to touch on the entire panoply of personal relationships that could affect a judge’s objectivity. As will be seen there is also decisional authority regarding intimate friends who are not related to the judge. This second area is perhaps not as clearly defined as one might wish for, but this unfortunate fact is more understandable when one accepts how different each personal friendship is, whereas familial relationships are clearly described in the Code.2 Speaking generally, all forms of close personal relationships impact a judge’s ethical duties in two ways. First, if the family member or close friend has “more than a de minimis interest” in the outcome of a case, the judge must recuse from that case unless the parties request remittal of disqualification. See Fla. Code of Jud. Conduct,Canon 3F. If, however, the person has no interest in the case, disclosure of the relationship is nevertheless appropriate.

 

(b) Cases Involving a Judge’s Family Members

The inquiring judge has read several opinions by this Committee, while acknowledging differences between those judges’ situations and the inquiring judge’s own. The opinions referenced in the judge’s query involve spouses and close relatives. Because the relevant Canons do not extend to persons whom a judge is merely dating, even exclusively, exhaustive analysis is not necessary. However, one never knows how a relationship may develop, and we think it wise to touch on some of those opinions if only for future guidance.

As noted, a judge’s responsibilities, when family members are in the picture, vary depending upon the circumstances. Even when the relative’s interest in a case is de minimis or nonexistent, disclosure of the familial connection is nevertheless encouraged.3 In addition, several opinions from this Committee have looked to the nexus between what the spouse or relative actually does and what kinds of cases the judge will be hearing. For example, in Fla. JEAC Op. 12-33, the judge’s spouse was legal counsel to the local Sheriff and the judge sat in a criminal division. The spouse mostly handled employment issues, which would have at most a tangential relationship to criminal cases.4 While we did not view recusal as necessary the opinion did note that the spouse was occasionally consulted on other legal matters as well. Understanding that one may not always be fully aware of what one’s spouse does at work, we advised the judge to disclose the relationship in all cases stemming from the Sheriff’s department, in case the spouse might have done work on a particular case. By contrast, in Fla. JEAC Op. 93-21, where the judge’s spouse was a managerial-level attorney for the state agency that prosecutes dependency petitions, we indicated that the judge should not consider going into a dependency division even though the spouse rarely if ever appeared in court, because the spouse’s work would still be inextricably intertwined with the judge’s. Cf. Fla. JEAC Op. 18-26, which stated that a judge did not have to leave a criminal division simply because the judge’s child was an Assistant Public Defender, so long as the child was assigned to a different criminal division.

Fla. JEAC Op. 18-26 adopted a common-sense approach that does not resurface when the judge is assigned to a civil division. Although, for purposes of conflict of interest, the Public Defender’s and State Attorney’s offices may be viewed as a “law firm”; see, e.g., Ward v. State, 753 So. 2d 705 (Fla. 1st DCA 2000); a government attorney generally has no personal stake in the outcome of a case. A judge’s handling of cases presented by other attorneys from the same agency should not affect the career standing of the judge’s relative. Further, in the case where the judge’s relative is involved in criminal defense, that relationship will be well known to the “firm” (i.e., the State Attorney) responsible for prosecuting all or most cases before the judge.

By contrast, civil cases tend to be randomly assigned if a given county or judicial circuit has multiple civil divisions, and these cases can draw attorneys from a much wider geographical area, some of whom may be unfamiliar with the judges with whom they will be dealing. Nearly all the attorneys practicing civil law will be private practitioners, and working for profit. As noted, the firm employing or associated with the inquiring judge’s new “significant other” is a civil firm regularly handling cases before the judge. The attorney whom the judge is dating will naturally have more than a de minimis interest in the cases the attorney handles personally and the inquiring judge has no intention of presiding over any such cases. From the judge’s description of how the attorney is compensated, it may be that the attorney does not directly benefit from whatever successes others in the firm may enjoy, even as it seems obvious that their business arrangement would not exist if both the lawyer and the firm did not consider it mutually beneficial.

 

(c) Cases Involving a Judge’s Personal Friends

The fact remains the inquiring judge and the attorney do not currently abide in a legal relationship - at least not yet. Instead, we must consider the ethical standards that apply when a judge and a lawyer are close friends. Fla. JEAC Op. 04-35 addressed the situation wherein the inquiring judge and the attorney were sufficiently close that the attorney voluntarily did not appear before the judge. The judge asked whether disclosure of the relationship was still required in cases where the attorney’s associate made an appearance. Our discussion opened with a reference to Fla. JEAC Op. 93-56: “The question of when a judge must reveal his close personal relationship with an attorney is very difficult to address. Judges are by definition attorneys and are not expected to remain socially apart from other attorneys.” We suggested the inquiring judge “evaluate whether the friendship with this particular attorney consists merely of socializing or whether, possibly, the attorney has also conferred or will confer gifts or other benefits on the judge.” If the latter, “the argument in favor of disclosure is certainly stronger” - if not outright disqualification. Further, the Committee perceived no difference when appearances before the judge were limited to other members of the friend’s firm. “This is in keeping with the general rule that a conflict of interest with one attorney extends to all members of that attorney’s firm.” Fla. JEAC Op. 89-08.

 

(d) Are Romantic Relationships Different From Friendships?

Our research has found only a few opinions touching on past and present romantic involvement between a judge and an attorney or frequent witness. Fla. JEAC Op. 08-03 involved a former fiancé of the inquiring judge. The judge asked whether recusal would be required in cases where the former fiancé serves as a forensic CPA expert (the judge was heading into a family division and the expert often testified in those cases). We decided in favor of recusal and, further, advised the judge also to disclose that the ex-fiancé’s CPA firm leased space from a partnership in which the judge was a general partner. In so stating we distinguished these facts from Fla. JEAC Op. 03-14, in which the judge was assigned to a criminal division and the judge’s former fiancé performed psychological evaluations for criminal defendants. While the romantic relationship had ended over ten years before the inquiry was sent, the judge and the psychologist remained friends. It is the length of time that the Committee found most significant in Fla. JEAC Op. 03-14. “[B]ecause of the passage of time . . . and their subsequent remarriages, there [is] no reasonable basis to assume the judge would be influenced to appoint the psychologist because of the prior . . . engagement.” Even so, the Committee believed then, and believes now, that the advisability of disclosing that prior relationship should be ascertained by “whether an objective, disinterested person, knowing all the circumstances, would reasonably question the judge’s impartiality.” By contrast, in Fla. JEAC Op. 08-03, the engagement had ended less than three years before the judge’s inquiry. Whether their relationship had ended badly was not discussed but should not have made any difference.

So is a romantic friend qualitatively different from an “ordinary” friend for purposes of judicial ethics? Perhaps so. Subtending the holding in Fla. JEAC Op. 08-03, if not expressly stated, is a recognition that romantic relationships can sometimes cloud one’s judgment or become volatile. Even if that never happens to this couple, we have taken note of In re Adams, 932 So. 2d 1025 (Fla. 2006), in which a judge was disciplined for having permitted an attorney to appear before the judge on a frequent basis despite being involved romantically with the judge. Such conduct, the Supreme Court wrote, “necessarily depletes the single most important source of his or her authority - the perception of the legal community and public that the judge is absolutely impartial in deciding cases” even if the judge in question was not found to have actually shown favoritism in the attorney’s cases and, in fact, had an otherwise “unblemished record.”

We are quick to repeat that the inquiring judge does not plan to hear cases in which the attorney with whom the judge shares a romantic relationship is personally involved. This is one of the reasons we have concluded that the circumstances provided by the inquiring judge demand disclosure of the relationship. We have also considered the description of the attorney’s business relationship with the firm, but the judge is strongly cautioned to ensure that the attorney does not personally benefit from cases handled exclusively by other members of the firm. Disqualification would be required if the facts were otherwise. Finally, we note that while the disclosure of the relationship may not automatically require disqualification, and thus that decision must be made on a case-by-case basis, the judge cannot lose sight of the laudatory goals these Canons are intended to accomplish. The judge should not be surprised if motions to disqualify are filed and must not take it personally when they are but instead strive always to view any motions objectively, and from the perspective of the clients whose interests are at stake.

 

REFERENCES

Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Association, - So. 3d -, 43 Fla. Law Weekly S565 (Fla. Nov. 15, 2018)

In re Adams, 932 So. 2d 1025 (Fla. 2006)

Ward v. State, 753 So. 2d 705 (Fla. 1st DCA 2000)

Fla. Code of Judicial Conduct, Canons 2B, 3E(1), 3E(1)(d), and 3F

Fla. JEAC Ops. 19-06, 18-26, 15-09, 12-33, 09-20, 08-03, 06-26, 04-35, 03-14, 97-08, 93-56, 93-21, 89-08 and 81-01

_____________


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 Jeffrey T. Kuntz, Judge Matthew C. Lucas, 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

 

1. The law firm in Herssein moved to disqualify the presiding judge due to the judge’s status as a “Facebook friend” of another attorney in the case. Noting the line of case law holding that the mere existence of a friendly relationship between a judge and an attorney does not require disqualification, but also that a majority of this Committee had recommended otherwise in Fla. JEAC Op. 09-20, the Supreme Court accepted that “friend” is essentially a term of art for Facebook users that often denotes a detached and relatively impersonal social connection, and held that “friend” status does not automatically require the judge to step down if that is the only basis cited in a motion to disqualify. The opinion was not unanimous, and although Justice Labarga concurred in the result the points made in his cautionary opinion should not be overlooked.

2. Fla. Code of Jud. Conduct, Canon 3E(1)(d) specifically employs the terms “spouse” and “person[s] within the third degree of relationship,” a term of art that has been interpreted as extending to relatives by marriage. See Fla. JEAC Op. 15-09.

3. Examples of opinions wherein this Committee has urged disqualification in the familial setting include Fla. JEAC Op. 81-01 (judge’s spouse worked as a secretary, not a lawyer, with a firm that appeared before the judge, but still had more than a de minimis interest in the firm’s success); Fla. JEAC Op. 97-08 (judge’s spouse worked for a temporary agency that assigned the spouse to law firms in various capacities; the position was viewed as “tantamount to [the spouse] being employed by the firm”); and Fla. JEAC Op. 06-26 (law firm employed the judge’s son). We have not always advised disqualification but, again, a lesser recommendation would occur only in situations where the benefit to the judge’s relative was minimal. See, e.g., Fla. JEAC Op. 19-06, wherein a law firm offered a part-time non-legal position to the judge’s high school-aged child.

4. For example the judge conceivably could rule that a Sheriff’s deputy exceeded his or her authority, such as by performing an unlawful arrest, which ruling might in turn lead to a disciplinary action. However, any litigation stemming from that discipline would not be heard by the judge.