FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-05
Date of Issue: February 22, 2005

ISSUES

Is a judge required to disclose a prior attorney-client relationship with a litigant that appears before the judge four years after the judge assumes the bench?

ANSWER: Yes, under the facts presented in this opinion.

FACTS

The inquiring judge has been a judge for four years and has been on the civil bench for two of those four years. Prior to becoming a judge, the judge was engaged in civil litigation. For fifteen to twenty years, the judge regularly represented a college of medicine and a hospital in defense of medical malpractice claims. Both clients are located in the jurisdiction where the judge presides. There is no ongoing professional, business, social, or personal relationship with any of the persons or entities with whom the judge dealt during the former attorney-client relationship. The judge seeks an opinion as to whether the judge can now cease disclosing the attorney-client relationship with these former clients when these former clients appear before the judge as litigants.

DISCUSSION

The Commentary to Canon 3E(1), Florida Code of Judicial Conduct, states: 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. As noted in JEAC Opinion 99-13: The attorney-client relationship is among the most revered professional relationships in our society. The very foundation of this relationship is based upon trust and confidentiality. Therefore, when a former client appears before the judge as a litigant, the judge must carefully scrutinize the issue of disclosure.

There is only one reported Florida appellate opinion that addresses the issue of a judge’s disqualification when the judge’s former client appears before the judge as a litigant. In Perona v. Fort Pierce/Port St. Lucie Tribune 763 So. 2d 1188 (Fla. 4th DCA 2000), the court held that disqualification of the judge was not warranted. Id. at 1189. However, disclosure is different from recusal or disqualification.

Three members of the Committee believe that the Judge should always disclose that a litigant appearing before the Judge was a former client regardless of how much time has passed. Seven members of the Committee believe that disclosure depends on the facts and circumstances of each case, such as the length of time that the judge represented the former client, the nature of the representation (e.g., did the representation require litigation or was it merely transactional), the type of case (e.g., was the representation a criminal or a civil matter), the amount of financial benefit the judge received in representing the former client, and how much time has passed since the representation ceased.

All of the Committee members recognized that a judge may not even remember that a litigant has been a client. This opinion does not require judges to maintain a “former client list” to be reviewed before presiding over a case to determine if the judge previously represented one of the litigants.

The majority of the Committee concludes that the facts presented in this inquiry require that the inquiring judge disclose his attorney-client relationship with the college of medicine and the hospital when they appear as litigants in matters before the judge. These former clients had a long-standing relationship with the judge which involved litigation. The nature of the representation would have consumed much of the judge’s time as a lawyer, and would have had a significant financial impact on the judge’s prior law firm.

These facts would be relevant to the question of disqualification and should be disclosed, whether or not they are legally sufficient to sustain a motion for disqualification. Therefore, while recusal may not be required pursuant to Canon 3E(1), Florida Code of Judicial Conduct1, and §38.10, Florida Statutes2, the inquiring judge should disclose the prior attorney-client relationship that the judge had with the hospital and medical school. This allows the parties to decide with full knowledge of the facts, whether to file a motion to disqualify pursuant to §38.10, Florida Statutes, and Rule 2.160, Florida Rules of Judicial Administration.

Two members of the Committee do not believe that disclosure is required since four years has passed since the inquiring judge represented the prior clients who now appear before the judge as litigants.

REFERENCES

Canon 3E(1) and Commentary, Fla. Code Jud. Conduct.

§ 38.10, Fla. Stat. (2004).

Fla. R. Jud. Admin. 2.160.

Perona v. Fort Pierce/Port St. Lucie Tribune 763 So. 2d 1188 (Fla. 4th DCA 2000).

Fla JEAC Op. 99-13

_____________

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 Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Melanie May, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vacccaro, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)

1. A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer or was the lower court judge in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;

(c) the judge knows that he or she individually or as a fiduciary, or the judge's spouse, parent, or child wherever residing, or any other member of the judge's family residing in the judge's household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding;

(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have a more than de minimus interest that could be substantially affected by the proceeding;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding;

(e) the judge's spouse or a person within the third degree of relationship to the judge participated as a lower court judge in a decision to be reviewed by the judge.

 

2. Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further.