FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-07
Date of Issue: February 21, 2019

ISSUES

Whether a judge is disqualified from cases handled by attorneys or their firms to whom the judge, before assuming the bench, referred cases that could have generated referral fees to the judge.

ANSWER: No. However, the judge should disclose any prior business relationships 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.

 

FACTS

The inquiring judge, before assuming the bench, referred personal injury cases to a member of a law firm. The judge would have been entitled to receive referral fees, if there was a recovery in the cases. One such case remained pending after the judge assumed the bench. The judge, pursuant to Fla. JEAC Op. 15-10, automatically disqualified himself/herself from presiding over any cases where this law firm was involved, as the judge was subject to receive quantum meruit compensation in the event of a recovery. This referral did not result in the firm or the judge recovering any fees.

Presently, years after the referred case terminated, the judge does not have any business relationship with the lawyer or the firm involved in that case. Regardless, the judge still discloses the previous business relationship in cases being handled by the firm. The inquiring judge asks whether the previous business relationship described above continues to disqualify the judge and whether recusal is mandated, if moved by a party.

 

DISCUSSION

Canon 2 of the Florida Code of Judicial Conduct calls for judges to avoid impropriety and the appearance of impropriety in all of the judge’s activities. The Commentary to Canon 2 describes the test for the appearance of impropriety as:

“whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”

Fla. Code Jud. Conduct, Canon 3E(1) lists a number of instances which will require mandatory disqualification of the judge. None of the listed instances are present herein. However, one of them generally touches upon the facts of this inquiry and serves to illustrate the type of instances requiring disqualification, where there is or has been a business relationship with the judge. Canon 3E(1)(b) in relevant part, requires disqualification where:

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 . . . (emphasis added)

It is clear that disqualification is not specifically mandated by Canon 3E. Even where former law associates of the judge are appearing before the judge, the only instance where disqualification is mandated is where the lawyer is handling a matter which was being handled at the same time the judge was associated with the lawyer. Regardless, Canon 3E(1) requires a judge to be disqualified in a proceeding in which the judge’s impartiality might reasonably be questioned, even when none of the specifically delineated disqualifying factors in Section 3E(1) apply.

This inquiry raises two distinct and separate issues covered by the Canons and with which the committee has previously dealt: disclosure and disqualification. See Fla. JEAC Op. 17-03. It is a settled premise that just because a judge chooses to disclose a relationship with a lawyer, it does not necessarily result in automatic disqualification. Fla. JEAC Ops. 05-06 and 17-03. The commentary to Canon 3E(1) provides:

[a] judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply . . . 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 commentary calls for, and many previous JEAC opinions have consistently held that, the issue of whether a judge should disqualify himself/herself when requested by a party, should be resolved on a case-by-case basis and that the judge must objectively consider whether disqualification is required. Fla. JEAC Op.12-37. The test is whether a disinterested person aware of the relevant facts would reasonably question the judge’s impartiality. Fla. JEAC Op. 17-21. A review of our past opinions clearly reveals that the facts of this inquiry do not, by themselves, warrant disqualification. And, while disclosure may have been made, judges are not required to disqualify or recuse themselves upon request of the lawyer or party.

A review of some of our prior opinions is instructive and helpful in understanding how the committee reaches the above result.

In Fla. JEAC Op. 86-09 the committee unanimously agreed that the judge could hear cases being handled by the attorneys who had recently represented the judge and his family, as the matter subject of the representation had been concluded. The committee recommended the judge to wait several months to lapse, before resuming hearing the lawyers’ cases. The committee further explained that “the lapse of time will lessen the chance that some displeased litigant will ascribe his loss to your past attorney/client relationship with opposing counsel.”

In Fla. JEAC Ops. 93-17 and 93-19 the committee found that the judges were not required to disclose prior attorneys’ representation in the sale of a home the previous year (93-19) or three years after the lawyer represented the judge in a case (93-17). The committee however cautioned that depending on the extent of the relationship with the attorney (strong social ties) or if the prior representation involved was one of great personal or monetary significance to either the judge or the attorney, disclosure would be appropriate or even necessary. See also Fla. JEAC Op. 95-15 (no disclosure necessary after eight years had lapsed from date where lawyer represented judge regarding custody of judge’s son.)

In Fla. JEAC Op. 04-06, the committee held that two years was an acceptable period of time for a then newly elected judge to be disqualified from hearing the judge’s former law firm’s cases, so long as there were no existing financial ties between the judge and the former law firm. The committee also advised the judge to disclose a previous attorney-client relationship with a litigant occurring four years before and found that disqualification was not warranted pursuant to Perona v. Fort Pierce/Port St. Lucie Tribune, 763 So. 2d 1188 (Fla. 4th DCA 2000). In Perona, the 4th DCA noted that having formerly represented a party was not one of Fla. Code Jud. Conduct, Canon 3E listed disqualifying instances and was not analogous to any of them. Without more, the fact that the judge had previously represented the party was not disqualifying.

In Fla. JEAC Op. 17-03, the committee held that disclosure was required, but not disqualification. There, a lawyer appearing before the judge had referred a case to the judge’s spouse, a lawyer, and who may have either shared or would share a fee with the referring lawyer. The committee reaffirmed the proper inquiry that must be made in these types of instances under Fla. Code Jud. Conduct, Canon 3. “The test is whether a disinterested person aware of the relevant facts would reasonably question the judge’s impartiality.” (quoting Fla. JEAC Op. 05-06). In the referral therein, assuming the referring lawyer would be entitled to the usual percentage of attorney fees recovered, the judge’s spouse would have stood to receive a larger fee than that due to the referring attorney. That is, the judge’s spouse would have been in a financially more enviable position than the judge herein.

In Fla. JEAC Op. 12-37, the committee held that a judge must recuse, for a reasonable time, from all cases involving the attorney and law firm that previously represented the judge, judge’s mother and judge’s brother in a personal injury case which settled before going to trial. In discussing what a “reasonable period of time” would be, the committee referred to Fla. JEAC Op. 04-06. There a period of two years was found to be a reasonable period of time for the judge to recuse from cases handled by the judge’s former law firm. With regards to disclosure, the committee concluded by noting it previously had “suggested that a reasonable period of time [was] from several months to one year, depending upon the unique facts and circumstances of the representation.” Fla. JEAC Ops 86-09 and 93-19.

Lastly, a review of the previous JEAC opinion which led to this inquiring judge’s disqualification in cases being handled by the lawyer or his/her firm, reveals that the circumstances forming the basis for that opinion do not exist and have not existed for several years. In Fla. JEAC Op. 15-10, the judge was in a position where the lawyer and firm might have to pay the judge a fee in the future. As such, the judge was involved in a “continuing business relationship with lawyers who appear[ed] before the judge.” Id. Because of this existing business relationship, the judge was disqualified by Fla. Code Jud. Conduct, Canon 5D(1)(b). The committee recommended “that the judge enter an order of recusal in all cases involving the law firm pursuing the contingency fee case.” (emphasis added). This pivotal and deciding fact has not existed here for several years, as the case never generated any fees. Thus, the inquiring judge is not required to automatically disqualify himself/herself. Also, the committee finds that the mere fact that the judge, while a lawyer, had referred cases to a lawyer or firm where the judge might have been able to receive or had received a referral fee several years before, by itself, would not cause a reasonable person to reasonably question the judge’s impartiality under Fla. Code Jud. Conduct, Canon 3E. However, if the nature of the relationship with the lawyer is so close or there are other factors present which the judge knows or feels are the types of factors that a lawyer or party might consider relevant to the question of disqualification, disclosure should be made. Fla. JEAC Op. 04-01.

 

REFERENCES

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

Fla. Code Jud. Conduct, Canons 2, 3, 3E(1), 3E(1)(b), 3E(1)(d)(ii), 5D(1)(b).

Fla. JEAC Ops. 17-21, 17-03, 15-10, 12-37, 05-06, 04-06, 04-01, 95-15, 93-19, 93-17, 86-09.

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

For further information, contact Judge James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator