FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-08
Date of Issue: May 25, 2011

ISSUE

Whether a judge who intends to seek re-election is disqualified from presiding over a case in which the law partner and campaign treasurer of an attorney who has qualified to run against the judge is an attorney for one of the parties.

ANSWER: Yes.

FACTS

The inquiring judge’s current term of office expires in early January 2015, more than three and one-half years away, and the judge intends to qualify for another term. The inquiring judge presides over a civil division. An attorney has announced intentions to run for the same judicial seat as the inquiring judge and has opened a campaign account to do so. This attorney has a law partner who represents a client in a case currently pending before the inquiring judge. This law partner is the campaign treasurer for the attorney seeking the judicial office.

DISCUSSION

Canon 3E(1) provides, “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned ….”  This Committee has observed, as long ago as 1984: “The committee unanimously states that you should be disqualified in cases of your political opponent…. Clearly, cases involving a political opponent, either as a party or as an attorney, are proceedings in which the judge's impartiality may be questioned, and these proceedings should be handled by another judge.”  Fla. JEAC 84-12 (local attorney announced intention to oppose judge’s re-election and requested judge’s disqualification in all cases in which the attorney appeared of record).  The inquiry was not as to whether the judge should disqualify but as to the correct method of doing so – whether by automatic, blanket recusal or via a case-by-case method.  The Committee was divided in its response. Some thought the case-by-case method the most appropriate, some thought it better that the judge automatically disqualify himself on all the attorney’s cases, and one thought the judge should act on his own motion pursuant to Fla. Stat. § 38.05 (now §38.10) whether on a case-by-case or blanket basis.

Since the inquiring judge is disqualified from any cases which involve the judge’s political opponent, the judge is also disqualified from any cases involving the political opponent’s law partner and campaign treasurer.  As the Committee has previously observed, “[A]ny ethical obligations regarding disclosure and disqualification arising out of an attorney’s appearance extends to any member of the attorney’s law firm.”  Fla. JEAC Op. 07-17 (attorney on judge’s campaign committee); See also JEAC Op. 04-01 (disqualification applied to members of attorney’s law firm); JEAC Op. 03-22 (disclosure and/or disqualification applies when any member of attorney’s law firm appears before the judge).

REFERENCES

§ 38.05, Fla. Stat.
Code of Judicial Conduct:  Canon 3E(1).
JEAC Ops. 84-12; 03-22; 04-01; 07-17

_____________

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, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge C. McFerrin Smith, Judge Jose′ Rodriguez, Judge Richard R. Townsend, and 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)