July 29, 1991

Opinion No. 91-12

Canon 2(A) and 3(C)(1)
Disqualification

You have inquired whether you should recuse yourself in all criminal cases that come before you because of a complaint pending against you before the Judicial Qualifications Commission wherein members of the office of the State Attorney in your circuit are adverse witnesses. to of the witnesses are attorneys.

Nine members of the committee feel you should disqualify or recuse yourself from any cases handled by these two attorneys during the pendancy of the case against you and for a reasonable time thereafter. One member thought you should disclose, but stopped short of disqualification. Three members who agreed you should disqualify yourself when the two attorneys appeared before you, also felt disclosure was necessary when other office personnel testified in a trial. A majority of the Committee also indicated that if subjectively you were not comfortable in hearing cases involving the office of the State Attorney, you should step down voluntarily.

The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges 327 So2d 5 (Fla. 1976).

With regards, I remain,

Yours very truly,

Jere Tolton, Chairman
Committee on Standards of Conduct Governing Judges

JT/mc

cc: All Committee Members

Participating Members: Judges Green, Tolton, Booth, Dell, Doughtie, Frank, Goldstein, Farina, Rushing and Clarke, Esquire.

All reference to the inquiring judge is deleted from the copies sent to the following individuals.

Mr. Sid White, Clerk of the Supreme Court of Florida
Judson Orrick, Managing Editor, The Florida Bar Journal
Brooke S. Kennerly, Executive Director, Judicial Qualifications Commission.
Hon. Walter K. Stapleton, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Cynthia Grey,Director, American Judicature Society
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Ms. Joan D. Cannon, Librarian, Supreme Court of Florida
William D. Wilkinson, Court Administrator, Lee County
Hon. Thomas H . Barkdull , Jr ., Third District Court of Appeal
Lynda Glyman, Esq. Center for Professional Responsibility, American Bar Association
Office of the State Courts Administrator, Legal Affairs & Education
Hon. Charles McClure, Chief Judge, Second Judicial Circuit