May 1, 1995
PERSONAL AND CONFIDENTIAL
(Disclose Attorney Representation
In re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated March 2, 1995
You inquired whether you need to disclose the representation by an attorney regarding the custody of your son which occurred eight years ago. You anticipate rotation to the family court division where that attorney may appear before you.
In Opinion 79-2, the Committee held that a judge need not voluntarily recuse himself in matters before the court where a member of the firm currently retained to represent the judge in Federal Court is the attorney of record, but that "he should acquaint himself with the relevant facts and offer to recuse himself upon request."
In Opinion 86-9 the Committee held that a judge is "not prohibited from hearing cases which involve the attorneys which have recently represented you and your family". The Committee added that, "As a practical matter, the members are unanimous in their recommendation that you allow several months to lapse before resuming the handling of such cases. One member believes you should wait at least six months."
Our Committee's responses only address the ethical implications and not the legal requirements for recusals. However, in light of the circumstances and since the representation occurred eight years ago, a majority of the responding members do not believe you must disclose the former representation.
However, one concurring member of the majority, after agreeing that no Canons would be violated by a failure to disclose, noted:
In the case of Judge ____, however, I am concerned that nondisclosure
might not pass the "St. Pete Times test." In other words, how
would the average, reasonably well informed citizen react were he to read
in the newspaper that a judge recently awarded custody of a small child
to a litigant who is represented by the same lawyer who, several years ago,
represented the judge in his quest for custody of a small child? In other
words, I would clearly make disclosure were the quandary mine.
The sole dissenting member believed you should disclose the attorney's prior representation and called for reconsideration of Opinion 93-56.
The 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 judges, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 327 So.2d 5 (Fla. 1976).
Very truly yours,
Steve Rushing, Chairman
Committee on Standards of Conduct
CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)
Participating Members:Judges Doughtie, Green, Kahn, Patterson, Rushing, Silverman