Tuesday, January 27, 2009

No Automatic Recusal

A trip to the Maine home of an attorney eight or nine years ago does not automatically require the disqualification of a judge in matters involving the attorney's clients, according to a recent opinion of the Florida Judicial Ethics Advisory Committee. The judge had previously entered a standing recusal order in the attorney's matters. They remain friendly and occasionally email each other. The committee opines that the trip must be disclosed to the opposing side for purposes of considering a motion to disqualify:

Under the facts provided here, the Committee concludes that the lapse of eight to nine years greatly lessens the chance that a displeased litigant will blame his or her loss on the judge’s acceptance of a gift from opposing counsel.  Accordingly, so long as the judge concludes that there is no personal bias, the Committee believes that automatic recusal is no longer necessary.

As to the remaining issue of disclosure, the Committee concludes that disclosure on the record of the judge's prior standing recusal order and the judge’s relationship with the attorney is required.  The judge's obligation to disclose relevant information is broader than the duty to disqualify.  In re Frank, 753 So. 2d 1228, 1239 (Fla. 2000); Stevens  v. American Healthcare Corp., 919 So. 2d 713, 715 (Fla. 2d DCA 2006).  The Commentary to Canon 3E(1) states that “[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 Committee concludes that parties or their lawyers who appear before the judge might consider the gift of a long weekend trip to the lawyer's home in Maine to be relevant to the question of disqualification, particularly in light of the fact that the judge and the lawyer continue to email each other regularly.  See Fla. JEAC 89-03 (accepting contributions to son’s quail-raising hobby, hunting with attorney, and use of attorney’s North Carolina cabin requires disclosure of the relationship and benefit received); but see Fla. JEAC 99-2 (judge is in best  position to make decision as to whether disclosure is required). 

Although the nature of the emails has not been described, the fact of the continuing correspondence by email and its regularity suggests some degree of personal familiarity beyond the type of ordinary social pleasantries one would expect to be exchanged between a judge and an attorney who regularly appears before the judge.   Accordingly, the Committee further advises that if the judge decides to cease the practice of automatic recusal from cases involving the attorney and the attorney’s firm, the judge should either discontinue the practice of regular email with the attorney or should disclose the fact of those communications now and for some reasonable period of time after termination of the practice. 

Finally, the Committee reminds the judge that "disclosure of information is not an admission of bias but is necessary to enable a party to make an informed decision as to whether or not to seek disqualification."  See Fla.  JEAC Op. 04-06; Fla.  JEAC Op. 01-17.  The disclosure of a  social or personal relationship does not automatically trigger an obligation to  disqualify.  See Stevens, 919 So. 2d at 715; Commentary to Canon 3E(1).

(Mike Frisch)


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