FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2003-14
Date of Issue: July 17, 2003

JUDGE APPOINTING PSYCHOLOGIST, TO WHOM THE JUDGE WAS PREVIOUSLY ENGAGED, TO CONDUCT PSYCHOLOGICAL EVALUATIONS.

ISSUES

1. May a judge appoint a psychologist, or the psychologist's business partner, to conduct psychological evaluations in criminal cases if the judge was previously engaged to be married to the psychologist, and the engagement ended over ten years ago?

ANSWER: Yes.

2. Whether the judge is required to disclose the judge's prior relationship with the psychologist.

ANSWER: No.

FACTS

A judge was engaged to be married to a psychologist for approximately one year, and this engagement ended amicably over ten years ago. After the engagement ended, the judge and psychologist married others. The judge and the judge's spouse continue to be friends with the psychologist and the psychologist's spouse. The psychologist and the psychologist's business partner are frequently appointed to conduct psychological evaluations by most of the judges in the circuit. The inquiring judge states that the failure to appoint these persons to conduct psychological evaluations would seriously restrict the quality of court ordered evaluations.

DISCUSSION

Canon 2, Code of Judicial Conduct, provides that a judge shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The Canon further provides that a judge shall not allow family, social, political, or other relationships to influence judicial conduct or judgment and states that the judge shall not lend the prestige of judicial office to advance the private interest of others. If the appointment of the psychologist, or the psychologist's partner, is based solely upon merit and is not influenced by friendship or a prior personal relationship, then the appointment is permissible under the Code.

Based upon the facts presented by the inquiring judge, this Committee concludes that because of the passage of time, there is no reasonable basis to assume that the judge would be influenced to appoint the psychologist because of a prior marriage engagement.

Whether or not to disclose the prior relationship and continued friendship is a decision to be made by the judge on a case by case basis. Prior opinions of this Committee have focused on the length and type of the relationship, and whether the relationship is ongoing. In Fla. JEAC Op. 93-17, this Committee held that a judge need not disclose that he had previously been represented by an attorney in a three year old closed case. In Fla. JEAC Op. 95-15, this Committee held that a judge need not disclose the representation by an attorney in a judge's custody case which occurred eight years previously. Likewise, in Fla. JEAC Op. 95- 16, a judge need not disclose that an attorney previously represented the judge one year after closure of an action. In Fla. JEAC Op. 01-17, this Committee opined that although disqualification is not required, disclosure may be appropriate for a reasonable period of time (emphasis added) when the judge's spouse has previously been represented by a law firm of one of the attorneys. In Fla. JEAC Op. 99-2, this Committee opined that a judge's prior "date" (five months prior) with a party's attorney does not mandate disqualification.

The commentary to Canon 3E(1), provides guidance to the inquiring judge regarding disclosure:

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.

This Committee concludes, therefore, that because of the passage of time there is no requirement to disclose the prior marriage engagement. However, the judge's friendship with the psychologist may have to be disclosed depending upon the unique circumstances of the current social relationship.

REFERENCES

(Canon 2, Code of Judicial Conduct Canon 3E(l), Code of Judicial Conduct
Fla. JEAC Op. 93-17
Fla. JEAC Op. 95-15
Fla. JEAC Op. 95-16
Fla. JEAC Op. 99-2
Fla. JEAC Op. 01-17

_____________

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 Phyllis D. Kotey, Judicial Ethics Advisory Committee, Eighth Judicial Circuit, Alachua County Courthouse, 201 East University Avenue, Room 205, Gainesville, Florida 32601.

Participating Members:
Judge Lisa Davidson, Judge Phyllis Kotey, Judge Melanie May, Judge Richard Townsend, Judge Scott J. Silverman, Judge McFerrin Smith, Judge Jeffrey D. Swartz, Judge Emerson Thompson, Judge Jose M. Rodriguez, Ervin A. Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)