SUBJECT: Should a judge permanently abstain from
presiding over any cases involving all of the
opposing counsel in a prior civil matter?
The inquiring appellate court judge was recently a plaintiff in a civil suit in which she prevailed and collected a judgment form the defendants. She has kept the names of all the attorneys involved is the suit on her recusal list. She now seeks an opinion as to whether she must permanently abstain for presiding over any cases involving all of the defense counsel involved in the civil matter.
By its terms, Canon 3E(1) requires a judge in these circumstances to make personal and case specific decisions. The Canon states that a judge shall disqualify herself in any proceeding "in which the judge's impartiality might reasonably be questioned..." Included it the instances delineated would be any case in which the judge "has a person, bias, or prejudice concerning a party or a party's lawyer..." Canon 3E(1)(a).
Committee Opinion 95-16 addresses the question of whether a judge may, one year after the termination of a lawsuit, hear cases involving the attorney who handled a lawsuit in which the inquiring judge was named as a defendant. The Committee referred the judge to Opinions 79-2, 86-9 and 95-15, and concluded that after the passage of one year, the inquiring judge could hear cases involving the former lawyer or the lawyer's law firm and that the judge did not need to disclose the representation or recuse.
Under Canon 3E, and prior opinions, automatic recusal is not required under the facts delineated here. Nevertheless, the Committee would advise the inquiring judge to make a reasoned determination whether, were she to sit on cases involving the former opposing counsel, her impartiality might reasonably be questioned. She must also determine for herself whether she has any personal bias or prejudice concerning these lawyers. Should the inquiring judge decide to remove the attorneys in question from her recusal list, she might consider notifying theses attorneys of her intended action, in order to allow them to take whatever steps, if any, they deem appropriate.
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 judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).
Dated the 29th day of May, 1997.
Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges
Participation Members: Judges Cardonne, Dell, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Smith, Tolton and Attorney Novicki
cc: All Committee Members
Office of the State Courts Administrator
Justice Charles T. Wells (name of judge deleted from this copy)