April 1, 1993
Canon 3C - Disqualification
Disclosure - Attorney previously represented judge
You ask must a judge who has been represented by an attorney three years ago in a now closed case, announce in every case in which that attorney appears before you the prior representation and relationship. Further, you ask would it be different if the representation was five or ten years ago. Also, you ask whether you must recuse yourself upon request of opposing counsel.
Five of the eight participating Committee members agree that disclosure should be unnecessary depending on the nature and the extent of the relationship between you and the attorney. If you maintain strong social ties with the attorney or the prior representation was in a "high profile" case or one of great personal or monetary significance to you or your former lawyer, disclosure would be appropriate or necessary. They agree the question must be answered on a case by case basis.
Three Committee members state the decision to disclose is not necessarily based on time. It is a question of whether the court's impartiality might reasonably by questioned. The test is whether an objective, disinterested person knowing all the circumstances would reasonably question your impartiality.
They cite Pool Water Products, Inc. v. Pools by L.S. Rule, 18 FLW D424 (4 DCA, 27 Jan 1993) that each judge must "make a conscientious assessment of matters which are known to the judge which might be interpreted as affecting the judge's impartiality. The judge should disclose matters which he or she believes might reasonably impair his or her impartiality. However, after searching his or her conscience and determining that the matter will not have an effect, disclosure is not required." This same case ruled that after disclosure is made and a party requests disqualification, the judge must recuse himself or herself.
One Committee member noted two prior Committee opinions. In Opinion 88-21, the Committee opined that disclosure was not necessary when a law firm employed by the Division of Risk Management defended the judge many years ago. The committee found this to be a non-personal employment relationship and a passive relationship with the judge.
In Opinion 86-9, the Committee opined that a Judge is not prohibited from hearing cases which involve an attorney who recently represented the Judge and his family in a personal injury action. The Committee suggested that a Judge wait several months after the conclusion of the case before the Judge hears cases involving his prior attorney. Also in this opinion, the Committee opined the Judge need not be concerned with disclosure after the lapse of a reasonable period of time.
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,
Harvey Goldstein, Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Participating members: Judges Tolton, Green, Booth, Doughtie, Goldstein, Farina, Rushing and Clarke, Esq.
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