Opinion Number: 99-2
Date of Issue: January 11, 1999
WHETHER A JUDGE MUST DISCLOSE A PREVIOUS "DATE" WITH AN ATTORNEY, WHEN THE ATTORNEY APPEARS BEFORE THE JUDGE?
WHETHER A JUDGE MUST DISCLOSE A PREVIOUS "DATE" WITH AN ATTORNEY WHEN MEMBERS OF THE ATTORNEY'S LAW FIRM APPEAR IN FRONT OF THE JUDGE?
IF THE RELATIONSHIP IS DISCLOSED, AND EITHER PARTY REQUESTS THE JUDGE
TO RECUSE HIMSELF/HERSELF, MUST THE JUDGE DO SO?
Whether a judge must disclose a previous "date" with an attorney,
when the attorney appears before the judge?
ANSWER: This is discretionary with each judge depending on the particular circumstances of each matter.
Whether a judge must disclose a previous "date" with an attorney
when members of the attorney's law firm appear in front of the judge.
ANSWER: If the judge would disclose this information if the attorney appeared in front of the judge, then the judge should also make the disclosure when members of the attorney's firm appear in front of the judge.
If the judge discloses the "date" and either side requests the judge to recuse himself/herself, must the judge do so?
The inquiring male judge had asked a female attorney out for a social dinner four or five months ago. The attorney is a member of a large law firm. At the time that the judge asked the attorney out he was unaware of any cases that she was handling in his division. The judge and the attorney went out on that one occasion and it did not develop into a personal relationship. Since that "date" the judge has not seen the attorney socially nor has he had any contact with her on a personal basis.
The attorney has appeared before the judge on two occasions. Each time the judge disclosed the prior dinner engagement and at the request of the opposing counsel, the judge recused himself.
The judge asks whether he must continue to disclose this dinner engagement whenever the attorney or members of her law firm appear before him. If the judge does disclose the dinner engagement, must the judge recuse himself if either party makes this request?
Canon 3E (1) states that "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned" regardless of whether any of the specific rules in Section 3E(1) apply. §38.05, Fla. Stat. (1997) authorizes a judge on his or her own motion to recuse himself or herself. Consequently, the decision to recuse one's self based upon Canon 3E(1) pursuant to §38.05, Fla. Stat. (1997) is left up to each judge.
However, the inquiry does not end with a judge's decision to recuse himself or herself based upon Canon 3E(1). The commentary to 3E(1) requires that 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 disqualification. The determination as to whether information would be considered relevant by the attorneys or the parties on the issue of disqualification has to be made by each judge on a case by case basis. Previous opinions of the Committee have focused on the length and type of relationship, and whether the relationship is on-going.
In Opinion 89-3 the Committee held that a judge must disclose an ongoing social relationship with an attorney who had contributed to the judge's son's interest in quail raising as a hobby, and who had hunted with the judge and allowed the judge to use the attorney's vacation cabin. This disclosure had to be made whenever that attorney appeared in a proceeding before the judge. The Committee noted that the gift disclosure requirement found in Canon 6B(2) did not relieve the judge of the requirement that such disclosure required. In Opinion 93-16 the Committee stated that the judge need not disclose that an attorney in a case before him was a campaign worker for the judge. In Opinion 93-17 the Committee found that a judge who had been represented by an attorney three years ago in a now closed case did not have to disclose this prior representation. The Committee went on to state that disclosure was unnecessary depending on the nature and the extent of the relationship between the judge and the attorney. If the judge maintained "strong social ties with the attorney or the prior representation was in a 'high profile' case or one of great personal or monetary significance to you or your former lawyer, disclosure would be appropriate or necessary. the question must be answered on a case by case basis." Three of the Committee members then stated that the decision to disclose is not necessarily based on time. "It is a question of whether the court's impartiality might reasonably be questioned. The test is whether an objective disinterested person knowing all the circumstances would reasonably question your impartiality." See also Opinions 95-15 (judge need not disclose the representation by an attorney regarding the custody of the judge's son which occurred eight years previously) and 95-16 (judge need not disclose that attorney previously represented judge, one year after closure of the action). In sum, the inquiring judge is in the best position to decide whether he believes disclosure is necessary.
If the judge believes that a relationship with an attorney must be disclosed then that same disclosure should be made when any member of the attorney's law firm appears before the judge. See Opinion 89-8.
The inquiring judge also asks whether, after he has made a disclosure, he must recuse himself based upon his disclosure of the relationship? This issue was discussed at length in Pool Water Products, Inc. v. Pools By L.S. Rule, 612 So. 2d 705 (Fla. 4th DCA 1993). In that case, the trial judge informed the parties, during a non-jury trial, that he was socially acquainted with a major witness. The opposing attorney requested the judge to recuse himself from the case, and the judge refused. The Fourth District Court of Appeal reversed, finding the trial judge should have recused himself. Relying on Canon 3C(1) of the Code of Judicial Conduct, the court noted,
"We think that if the matter known to the judge is of such concern that the judge believes that it should be revealed to the parties, then the necessary implication is that the judge feels that it is a matter on which the parties may reasonably question his impartiality. Therefore, having revealed the matter, if the party then requests disqualification based upon what the judge has revealed, we think he is duty bound to recuse himself." 612 So.2d at 706-707.
The Committee adopted this reasoning in Opinion 93-56, where the inquiring judge asked whether he must disclose that an attorney was a close social friend whenever the friend or the friend's firm appeared before him, and whether he must recuse himself if requested. The Committee stated,
"It is our Committee's opinion that if a judge discloses a possible conflict, then, upon motion, the judge should recuse regardless of the legal sufficiency of the motion."
In W.I. v. State, 696 So.2d 457 (Fla. 4th DCA 1997) the Fourth District Court of Appeal questioned the validity of its earlier opinion in Pool Water Products. In W.I. the trial judge disclosed she had previously prosecuted the juvenile now appearing before her, and that she had a close friendship with a case worker assigned to the juvenile. The juvenile requested the trial judge recuse herself, and the judge refused.
The appellate court found the judge should have recused, based on her prior prosecution of the juvenile. The court did not believe the "second ground asserted for disqualification, namely the trial judge's voluntary disclosure of friendship with the case worker was legally sufficient in and of itself." 696 So.2d at 458.
The court questioned its prior Pool Water Products ruling, based upon a later decision of the Florida Supreme Court in In re Code of Judicial Conduct, 659 So.2d 692 (Fla.1995). In that opinion the Supreme Court of Florida amended its Commentary to Canon 3E as follows:
"Canon 3E(1). Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply . . . 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 disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis." (emphasis added)
This Committee must also question the continuing validity of Opinion 93-56. Based on the Code revisions by the Florida Supreme Court, the Committee recedes from Opinion 93-56 to the extent the Opinion requires a judge to recuse himself/herself after disclosing a social relationship, regardless of the legal sufficiency of the motion.
One Committee Member appropriately stated that the answer to the question, if the relationship is disclosed and either party requests the judge to recuse himself/herself, should be as follows: "No, however, this is discretionary with each judge depending upon the particular circumstances of each matter and must be decided upon on a case by case basis."
Florida Code of Judicial Conduct 3C(1), 3E(1) and 6B(2).
Florida Judicial Ethics Advisory Committee Opinions: 89-3; 89-8; 93-16; 93-17; 93-56; 95-15; 95-16.
In re Code of Judicial Conduct, 659 So.2d 692 (Fla. 1995).
W.I. v. State, 696 So.2d 457 (Fla. 4th DCA 1997).
Pool Water Products, Inc. v. Pools By L.S. Rule, 612 So.2d 705 (Fla. 4th DCA 1993).
§38.05, Fla. Stat. (1997).
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 by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.
For further information, contact The Honorable Lisa D. Kahn, Chair, Judicial Ethics Advisory Committee, Harry T. & Harriette V. Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.
Participating Members: Judges C. Kahn, L. Kahn, Patterson, Rodriquez, Rushing, Smith, Tolton, Swartz and Attorney Blanton
Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)