FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-15
Date of Issue: October 19, 2005

ISSUES

Whether a sitting circuit judge who has hired a lawyer to represent him in a civil action against the county, where the judge is the only judge assigned to the probate and guardianship division, needs to file a notice of disqualification in all cases handled by the law firm.

ANSWER: The inquiring judge should enter a general recusal in all cases involving the lawyer and the lawyer’s firm. See JEAC Op. 99-13. Although the inquiring judge asked several other questions, we need not discuss them.

FACTS

The only judge assigned to the probate and guardianship division has hired a local law firm to represent the judge in an action against that county. Because members of the law firm regularly handle probate and guardianship cases, the inquiring judge has decided to file a notice of disqualification in all cases involving the judge's attorney's law firm pursuant to Canon 3E. The inquiring judge wrote: "There is no question that Canon 3E applies to my situation, and I plan to disqualify myself in all cases involving my attorney's law firm." Disqualification would be presumptive unless the parties filed a waiver. However, many cases in the probate division do not involve multiple parties. The inquiring judge states that many of the probate cases are non-adversary and may only involve one party, such as the sole beneficiary of the estate. The inquiring judge wants to know the proper procedure to comply with Canon 3F, Remittal of Disqualification.

DISCUSSION

JEAC Opinion 99-13 is dispositive. In that opinion, an inquiring judge asked whether the judge, who was represented by an attorney, must recuse when members of the lawyer's firm appeared before the judge on contested and uncontested matters. Citing Canon 2 and Canon 3E, we stated the judge must automatically recuse, even if the parties do not request recusal. We wrote:

"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. It would be hard to imagine that litigants, even in uncontested matters, would not be distrustful of the impartiality of a judge in a matter in which a law firm presently representing the judge was the firm of record in a matter before that judge."

Thus, the inquiring judge should recuse in all cases involving his attorney or his attorney's firm. As in JEAC Opinion 99-13, the inquiring judge should file an administrative order recusing in every case involving the lawyer or the lawyer's law firm.

REFERENCES

Fla. Code Jud. Conduct, Canons 2, 3, 3E(1) and Commentary, and 3F.

Fla. JEAC Op. 99-13

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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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Marjorie Gadarian Graham, Esq., Chair, Judicial Ethics Advisory Committee, 11211 Prosperity Farms Road, Oakpark, Suite D129, Palm Beach Gardens, Florida 33410.

Participating Members:
Marjorie Gadarian Graham, Esq., Judge Karen Cole, Judge Lisa Davidson, Ervin A. Gonzalez, Esq., Judge Michael Raiden, Judge Jose M. Rodriguez, Judge Leslie B. Rothenberg, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro.


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