FLORIDA SUPREME COURT
JUDICIAL ETHICS ADVISORY COMMITTEE
Opinion Number: 00-34 (Amended)1
Date of Issue: October 25, 2000
May a judge preside over a case in which a former law partner is an attorney of record, and the attorney's law firm is making payments to the judge pursuant to the terms of a promissory note?
The inquiring judge was a shareholder of a professional association for many years prior to being appointed to the bench. Under the terms of his former employment agreement, the firm repurchased all of his stock and gave him a promissory note for a fixed repurchase price with a payout of six years. Other than being the holder of the promissory note, he has no financial interest in the firm. The judge wishes to know whether he may sit on cases in which a former partner is an attorney of record.
Because this issue has been addressed several times by past Committees with mixed results, it is appropriate to establish a bright line standard resolving this issue. This Committee concludes that disqualification is required pursuant to Florida Code Judicial Conduct, Canon 3E(1), if a judge is receiving payments from a former law firm pursuant to the terms of a promissory note. In 1974, the former Committee on Standards for Judicial Conduct determined that a judge may receive a predetermined amount in annual installments for payment of his interest in his former law firm. The Committee found no obligation per se for the judge's recusal from matters being handled by his former firm. See Fla. JEAC Op. 74-4. The rationale of this opinion was adopted in this Committee's Opinion 75-7 (sale of interest in firm and lease of building to remaining partners) and Opinion 78-16 (judge as payee of promissory note executed by shareholders of judge's former professional association).
In Opinion 87-24, a judge sold his one-half interest in an office building to a law firm, and the judge held a first mortgage with the payments on the mortgage note due monthly. A majority of a sharply divided Committee, relying upon Opinion 85-8, determined that the judge should recuse himself and not sit on cases involving the law firm/mortgagor. A minority of the Committee disagreed and concluded that the relationship should be disclosed and that the judge should recuse himself on the motion of any party.
Canon 3E(1) provides in part as follows:
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . .
The commentary states that this rule applies regardless of whether any of the specific examples set forth in the rule apply.
Although the inquiring judge has no direct financial interest in the law firm, the judge has an interest in the overall ability of the firm to make payments pursuant to the terms of the promissory note and thus has an interest in the future financial success of the firm. Furthermore, a disclosure, whether inadvertent or otherwise, by a lawyer that the lawyer is making periodic payments to a judge would create in the public a perception of impropriety, and the impartiality of the judge might reasonably be questioned.
This Committee, therefore, recedes from Opinions 74-4, 75-7, and 78-16 to the extent that they are inconsistent with this opinion and concludes that disqualification is required when payments are due a judge from a law firm pursuant to a promissory note unless the disqualification is waived by the parties after disclosure by the judge pursuant to Canon 3F.
Many judges were engaged in the private practice of law prior to assuming the bench. It is not unusual for these judges to divest themselves from any ownership interest in the real or personal property of a partnership or professional association and receive periodic payments for this interest. The receipt of such payments is not precluded by the Code of Judicial Conduct. Judges are reminded, however, of Canon 5D(4), which requires a judge to manage the judge's financial interests so as to minimize the number of cases in which the judge is disqualified. This Canon further requires the judge to divest himself or herself of financial interests that might require frequent disqualification if the judge can do so without serious financial detriment.
Florida Code of Judicial Conduct, Canons 3E(1), 5D(4).
Florida JEAC Ops. 74-4, 75-7, 78-16, 85-8, and 87-24.
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 Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850
Judge Charles J. Kahn, Jr.
Judge Lisa D. Kahn
Judge Phyllis D. Kotey
Judge Scott J. Silverman
Judge C. McFerrin Smith, III
Judge Emerson Thompson
Judge Richard R. Townsend
Marjorie Gadarian Graham
1 This opinion corrects a scrivener's error concerning an incorrect reference to Opinion 75-4 in the first sentence in the next to last paragraph of the original Opinion. The Commitee recedes from Opinions 74-4, 75-7 and 78-16.