Monday, February 19, 2018

Thinking Does Not Disqualify Judge (Think About That)

The Florida Judicial Ethics Advisory Committee opines:

Opinion Number: 2018-03
Date of Issue: February 4, 2018


1. Whether a judge must recuse based on information that an attorney who regularly appears before the judge is “thinking” of running against the judge.

ANSWER: No, unless a personal bias or prejudice against the attorney or the attorney’s client has developed.

2. Whether the judge may ask the attorney directly whether the attorney intends to run against the judge.



The inquiring judge has received “credible” information that an attorney who appears before the judge on a regular basis is “thinking” about running against the judge in the upcoming election cycle.

The judge also notes that there is a pending dispute between the attorney’s family and the judge’s parents, the origin of which occurred “a couple of years ago.” The judge states that there is no issue between the judge and the attorney over the matter; nor has there ever been a related recusal or motion to disqualify.

The judge reports that the community in which the judge sits is very small, and that the attorney appears in front of the judge frequently representing the same client. The judge reports having no feeling of personal bias against the client, but is concerned about the appearance of impropriety. The judge is also concerned about the impact recusal would have on the dockets of the other judges in the jurisdiction in which the judge sits.


We agree with the Arizona Judicial Ethics Advisory Committee. We do not believe that either rumors or direct statements from an attorney to others that the attorney is “thinking” about running against the judge, or notice directly from the attorney to the judge that the attorney is “thinking” about running or intends to run, would reasonably draw into question the judge’s impartiality. The inquiring judge here has stated expressly that the judge has not developed a bias against the attorney’s client but is merely concerned about the appearance of impropriety. We conclude that until the attorney formally announces opposition to the judge, there is not a reasonable basis to question the judge’s impartiality that needs to be addressed by the judge.

(Mike Frisch)

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