March 29, 2012
Judge Must Disclose But Not Necessarily Recuse
A recent opinion from the Florida Judicial Ethics Advisory Committee:
Whether recusal is required when the inquiring judge was an attorney representing the adverse party of an attorney/litigant over seven (7) years ago?
ANSWER: No, unless the previous contested litigation has affected the judge’s ability to fairly sit in judgment on the current unrelated civil matter.
Whether disclosure is required when the inquiring judge was an attorney representing the adverse party of an attorney/litigant over seven (7) years ago?
Approximately seven (7) years ago, prior to becoming a judge, the Inquiring Judge represented a client in a dissolution of marriage action. The adverse party was the client’s wife who was and currently still is a practicing attorney. The parties to the dissolution were adverse to each other on most every issue. The wife was represented by counsel as well. The Inquiring Judge represented this client for a little over a year before being withdrawn by court order from the case. The Inquiring Judge asks if recusal and/or disclosure are necessary when the attorney/former litigant later appears as an attorney of record in an unrelated case in front of that judge.
This opinion is limited to the question presented which is whether the Inquiring Judge is required on the judge’s own initiative to recuse from the matter. Based on the facts set forth by the inquiring judge, no motion to disqualify has been filed, and therefore the Committee has not been presented with the content of any such motion, nor would the Committee issue an opinion determining the legal sufficiency of any such motion.
Rather, this inquiry invokes Canon 3E(1) of the Code of Judicial Conduct which provides that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” Although the prior opinions of the Committee on this subject do not involve facts related to this particular set of circumstances, our opinions suggest that recusal would not be mandated or required in this setting. The determination of whether the judge’s impartiality might reasonably be questioned depends on 1) the nature and extent of the relationship between the Inquiring Judge and the former client who is the ex-spouse of the practicing attorney, 2) whether there was any financial or monetary significance to the judge, 3) to what extent the action was contested, 4) whether any contempt proceedings and/or sanctions were initiated by or against this practicing attorney/litigant during the contested dissolution action, and 5) whether the judge was privy to information about the attorney/former spouse of the judge’s client that would affect the judge’s ability to be fair and impartial in the proceeding currently pending before the judge. Unless the Inquiring Judge feels that the previous contested litigation has affected the judge’s ability to fairly sit in judgment on the current unrelated civil matter, then recusal is not required. If, however, for example, the judge acquired information that causes the judge not to be able to give credence to an attorney in a case before the judge, then the judge should recuse.
But the inquiry does not end there. The Committee believes the Inquiring Judge should disclose to the parties and lawyers the past representation on the contested dissolution of marriage, and that the attorney was the adverse litigant many years earlier. The Commentary to Canon 3E of the Code of Judicial Conduct discusses the circumstances under which disclosure is appropriate: “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 the 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.”
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