FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-23
Date of Issue: November 13, 2020



ISSUES

1. Is a judge disqualified from involvement in proceedings in which one of the attorneys is a former client of the judge or is a member of a law firm formerly represented by the judge?

ANSWER: No.

2. If disqualification is not required, must the judge disclose that an attorney for one of the parties was previously represented by the judge?

ANSWER: Yes, disclosure of the representation should be made for a reasonable period of time after the representation terminated.

 

FACTS

The inquiring judge had a legal practice that included the representation of attorneys, their law firms, or both the attorneys and their firms. Some of those clients were statewide law firms which employ many attorneys or were attorneys employed by such firms. It is possible that some of the attorneys whose conduct was at issue could appear before the judge, and likely that attorneys from some of the statewide firms would appear before the judge. The judge requests guidance on whether disqualification is required under such circumstances and, if not, whether disclosure of the relationship is required. The judge further inquires about the length of time which must pass after the representation before disqualification or disclosure is no longer required, should either be necessary.

 

DISCUSSION

The Florida Code of Judicial Conduct, Canon 3E, requires a judge to disqualify himself or herself from a proceeding in which the judge’s impartiality might reasonably be questioned.

Some existing opinions of this committee deal with the issue of former clients appearing before a judge as parties. Others involve attorneys who are representing or formerly represented a judge appearing before that judge, but none appear to deal with instances where a former client appears before the judge in his or her capacity as an attorney representing one of the litigants.

In Perona v. Fort Pierce/Port St. Lucie Tribune, 763 So. 2d 1188 (Fla. 4th DCA 2000), it was held that prior representation of one of the parties by a judge, without more, is not a ground for disqualification of the judge. This committee, in Fla. JEAC Op. 17-17 and Fla. JEAC Op. 05-05, likewise stated that a judge need not self-disqualify from a case merely because one of the parties was a former client. It has, conversely, been held that a judge must disqualify himself or herself from proceedings in which the attorney for one of the parties currently represents the judge or a family member, or has done so recently. Fla JEAC Ops. 12-37, 99-13, and 05-15. Fla. JEAC Op. 86-09 suggests that a judge should continue to disqualify himself or herself from cases in which a party is represented by the same attorney who formerly represented the judge for several months after the representation has ended.

Taking such prior opinions into consideration, the situation described by the inquiring judge appears to be more similar to those in which a party to the proceeding is a former client of the judge than to those in which an attorney appearing before the judge is currently representing, or has recently represented, the judge. In the instances where either the party or the attorney is a former client, the person whose relationship is in question is merely a person whom the judge was employed to represent, rather than a person sought out by the judge to use his or her legal expertise to aid the judge. The concern about a possible conflict of interest would thus be more remote when a former client is the attorney for a party than when the attorney is, or was, also counsel for the judge in a matter personally affecting the judge. Accordingly, the committee believes that the same standard should be used when considering cases involving former clients, regardless of whether the former client is a party to a proceeding before the judge, or is appearing as an attorney before the judge in a proceeding. The judge should not be required to disqualify himself or herself from a proceeding merely because one of the attorneys for the litigants was once represented by the judge. In the absence of any other factor that might give rise to a reasonable question as to the judge’s impartiality, no need for disqualification exists. The judge must, of course, consider each case individually to ensure that no special circumstances exist that would make disqualification appropriate.

Though no requirement of mandatory disqualification exists, the committee believes that the judge should disclose the former attorney-client relationship until a reasonable period of time has passed after the judge’s representation of the former client ceased. The committee has never created a bright-line rule as to what that reasonable length of time might be, but some opinions of the committee have suggested time periods ranging from several months to one year. Fla. JEAC Ops. 01-17, 12-37.

The same rules for disclosure apply whether it was an individual attorney or the law firm which was previously represented by the judge. Prior decisions of the committee have made no distinction between large law firms, small law firms, or individual attorneys concerning issues of disqualification and disclosure of possible conflicts. Fla. JEAC Ops. 17-20, 20-08. No reason exists to make such a distinction in this instance. The judge should make the disclosure of his representation for a reasonable period of time as described above in any case involving either an attorney or a member of the law firm which he or she represented.

REFERENCES

The Florida Bar v. Perona v. Fort Pierce/Port St. Lucie Tribune, 763 So.2d 1188 (Fla. 4th DCA 2000)
Fla. Code Jud. Conduct, Canon 3E
Fla. JEAC Ops. 20-08, 17-20, 17-17, 12-37, 05-15, 05-05, 01-17, 99-13, 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 Mark Herron, Esq., Judicial Ethics Advisory Committee Chair, Messer Caparello, P.A., Post Office Box 1701, Tallahassee, FL 32302 or JEAC@flcourts.org.

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:
Chief Justice Charles T. Canady, Justice Liaison
John A. Tomasino, Supreme Court Clerk
All Committee Members
Alexander J. Williams, General Counsel of the JQC
Melissa Hamilton, Staff Counsel
Executive Director of the J.Q.C.
Office of the State Courts Administrator