FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-36
Date of Issue: October 28, 2010

ISSUE

Whether a newly elected judge,  who previously served as an assistant public defender, may hear a case involving a defendant who was represented by the public defender's office during the judge's employment in that office, if the judge has no involvement with, and no knowledge of the facts of the case?

ANSWER: Yes, unless there are other circumstances which may cause the judge's impartiality to reasonably be questioned.

FACTS

The inquiring judge served as an assistant public defender and has recently been elected as a circuit judge.  Although having been employed in the public defender's office for many years, the inquiring judge's responsibilities during the last five years of employment in the public defender's office were almost exclusively related to homicide cases, with a limited number of armed robbery and kidnapping cases.  The inquiring judge does not intend to hear any homicide cases which were assigned to the public defender's office during the inquiring judge's employment there, regardless of whether any responsibility was exercised or knowledge gained.  The inquiring judge also does not propose to hear non-homicide cases in which responsibility was exercised or knowledge gained as an assistant public defender.  The inquiring judge asks whether the proposed disqualification plan is consistent with the Code of Judicial Conduct.

DISCUSSION

Canon 3E(1)(b) of the Code of Judicial Conduct states, in pertinent part:

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

(b) the judge served as a lawyer or was the lower court judge in a 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.

          The commentary to this section, as it relates to governmental employees provides:

A lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of Section 3E(1)(b); a judge formerly employed by a governmental agency, however, should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association. 

The inquiring judge acknowledges having read Fla. JEAC Op. 91-17, which holds that a judge may not preside over a criminal case which was in the public defender's office, although assigned to another assistant public defender, while the judge was employed by that office. 

Op. 91-17 relies on the above quoted language from Canon 3E(1)(b), which at the time was numbered 3C(1)(b) but does not refer to the commentary quoted above regarding attorneys employed by governmental agencies.  Op. 91-17  relies on Op. 77-11, which relates to a judge who was previously in private practice.

The committee concludes that Op. 91-17 was erroneously decided, to the extent that it appears to hold that a judge who was previously a public defender must not preside over any case which was assigned to the public defender's office at the time the judge was employed there, regardless of whether the judge had any responsibility for, or knowledge of, the case now being adjudicated.  The commentary quoted above recognizes that lawyers in government agencies, such as a public defender's office, are not automatically disqualified from hearing a matter simply because it had been assigned to the public defender's office at the time the lawyer (now a judge) was employed by that office.

The commentary goes on to note, however, that, even though not automatically disqualified because of the previous employment, the judge should "disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such associa­tion."

In the present inquiry, the inquiring judge has concluded that, having been almost exclusively assigned to homicide cases, but also having handled several armed robbery and armed kidnapping cases, during the last five years as an assistant public defender, the judge should not hear any homicide cases which were in the public defender's office during the judge's employment there, even though there was no responsibility for those cases nor knowledge of the facts.   Further, for any non-homicide matter, the judge proposes not to hear such case if the judge had responsibility for the case or acquired any facts concerning the case during the judge's time in the public defender's office.

The committee believes that, based on the circumstances described, the inquiring judge proposes a disqualification plan which appears to be consistent with the Code.   However, the Committee notes that other circumstances of which it has not been made aware in the request for opinion (and indeed of which the inquiring judge may not be aware at the time of seeking the opinion), relating to  individual cases or categories of cases  may cause the inquiring judge's impartiality to reasonably be questioned in certain situations.   In those matters, the judge should not hear those cases.

The committee does not intend, by this opinion, to suggest that the course followed by the inquiring judge in this matter is required to be followed in all other circumstances in which a public defender or other agency employee becomes a judge.  Similarly, the committee does not intend to suggest that because a judge follows a different course, that the judge has violated the Code.   The individual circumstances involving the former public employee, now a judge, will determine whether the judge's impartiality might reasonably be questioned.  The result suggested by these circumstances may vary depending on such facts as the size of the agency, the seniority and supervisory responsibilities of the lawyer, who has now become a judge, the length of time the lawyer served in a particular position in the agency, among others.   Because these circumstances may vary so significantly, the committee is unable to provide any guidance on this issue that may be applied universally.   

What can be said, as a general proposition, is that based on the commentary to Canon 3E(1)(b), service in the office of a public defender or other public agency does not automatically disqualify a judge from adjudicating matters which were assigned to the agency at the time the lawyer, who is now a judge, was employed by that agency.

REFERENCES

Fla. Code Jud. Conduct, Canon 3E(1)(b) and Commentary to 3E(1)(b).
Fla. JEAC Ops.  77-11 and 91-17.

_____________

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 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. See 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. See Id.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Judge Kerry I. Evander, Chair, Judicial Ethics Advisory Committee, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida  32114-5002.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esq., Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Patricia E. Lowry, Esq.,  Judge Jose Rodriguez, Judge C. McFerrin Smith III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.


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
Inquiring Judge (Name of inquiring judge deleted from this copy)