What every lawyer should know about the Florida Code of Judicial Conduct; "but I'm a friend of the court" and other predicaments.

• Author: Kahn, Charles J.

Most judges have come to realize that they cannot do their job without lawyers. Most lawyers have concluded that the obverse is also true. Although judges and lawyers meet in a formal context during court proceedings, many other less formal relationships and connections exist between judges and lawyers. Oftentimes, questions about such relationships and connections are governed by the Florida Code of Judicial Conduct ("the code") (1) and the opinions of the Florida Judicial Ethics Advisory Committee (JEAC or "the committee"). (2) This article seeks to familiarize Florida lawyers with solutions to frequently occurring situations involving relationships between lawyers and judges.

Social Relationships Between Judges and Lawyers

Lawyers, like members of any profession, commonly form friendships among themselves, and these friendships may well endure beyond the time one of the lawyers takes the bench through election or appointment. Under Canon 2 of the code, "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." In particular, "A judge shall not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment." (3)

Social relationships between lawyers and judges often give rise to questions concerning disclosure and disqualification. Although the code provides some specific instances in which a judge must accept disqualification from a case or proceeding, the general rule concerning disqualification is quite broad: "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned...." (4) Those circumstances specifically mandating disqualification include instances where a judge "has a personal bias or prejudice concerning a party or a party's lawyer...." (5) The policy of the Florida Supreme Court favors a broad rule of disclosure. For instance, the commentary to Canon 3 of the code notes 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." Accordingly, the Supreme Court and the committee suggest that the mere fact that a judge makes disclosure "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." (6)

Although Canon 2 warns that no judge should allow personal or social relationships to influence the judge's judicial conduct, such relationships are clearly not, nor should they be, prohibited by the code. Accordingly, a circuit judge and the judge's spouse may jointly cohost a "sizeable party" with a practicing attorney and the attorney's spouse. (7) A significant social relationship between a judge and a lawyer should be disclosed by the judge, however, and the fact that the judge may have received gifts that required mandatory reporting as a result of the social relationship does not negate the obligation to disclose. (8)

The broad policy favoring disclosure has led to an evolving stance on the question of whether a judge who has previously made disclosure is subject to mandatory disqualification upon request. As noted above, the current Supreme Court commentary to Canon 3 suggests that mandatory disqualification is not required. The committee has also looked quite closely at the issue. The committee has recognized that legal, as well as ethical, questions are presented by this issue. In JEAC Opinion 93-56, the inquiring judge had a close social friend who was an attorney in a fairly large law firm. The judge did not, however, feel that disqualification was necessary because of the friendship. In an inquiry letter to the committee, the judge noted that, even though he had granted a recent motion for recusal, he now was concerned with the extent of his ethical obligation to make disclosure and then to enter an order of recusal upon request after having made such disclosure. The committee opinion recognized that although the threshold for disclosure may be difficult to determine, "if a judge discloses a possible conflict, then, upon motion, the judge should recuse regardless of the legal sufficiency of the motion" (9) The committee took a practical approach to the question of disclosure of a personal relationship between an attorney and a judge:

The question of when a judge must reveal his close personal relationship with an attorney is very difficult to address. Judges should certainly be aware that close social relationships with attorneys may create an appearance of impropriety. On the other hand, we are of the opinion that judges should certainly not remain socially apart from attorneys. When disclosure is necessary may involve how well the attorneys are known to the judge. If the judge has, for example, a weekly tennis game with a couple of lawyers, it may not be necessary to mention this to other members of the local bar, but it may be prudent to disclose this to an out-of-town attorney. (10)

In its response to the inquiry in Opinion 93-56, the committee noted that it could address only the ethical implications for disclosure and disqualification, and not the legal requirements for recusal. (11)

The committee has recently attempted to comprehensively examine the question of whether disqualification flows automatically following disclosure of a social relationship. In a 1999 opinion, the committee examined a judge's obligations to make disclosure where the judge had previously dated an attorney. (12) The inquiring male judge had one dinner date several months earlier with a female attorney who belonged to a large law firm. The relationship developed no further. The judge then inquired whether he was obligated, on each occasion that the female attorney appeared before him, to make disclosure of the previous relationship. The judge also inquired whether, assuming disclosure was made, he must then recuse himself if either party made a request.

The committee took the position that the obligation to disclose, as illustrated by the Supreme Court's commentary to Canon 3E(1), is broader than the obligation to disqualify. (13) In reviewing earlier ethics opinions, the committee noted that both the passage of time and the extent and nature of the relationship are relevant. (14) "The test is whether an objective disinterested person knowing all the circumstances would reasonably question [the judge's] impartiality." (15)

In examining the question of automatic disqualification, the committee looked at the opinion in Pool Water Products, Inc. v. Pools by L.S. Rule, 612 So. 2d 705 (Fla. 4th DCA 1993). In that case, the trial judge had informed the parties after commencement of a nonjury trial that the judge was socially acquainted with a major witness. When requested by one of the attorneys to recuse himself from the case, the judge refused. Relying upon Canon 3C(1) of the code, the Fourth District reversed:

We think that if the matter known to the judge is of such concern that the judge believes that it should be revealed to the parties, then the necessary implication is that the judge feels that it is a matter on which the parties may reasonably question his impartiality. Therefore, having revealed the matter, if the party then requests disqualification based upon what the judge has revealed, we think he is duty bound to recuse himself. (16)

The reasoning of the Fourth District was quite similar to that adopted by the committee in JEAC Opinion 93-56. In Opinion 99-2, however, the committee noted that the Fourth District may have later questioned its Pool Water Products decision. (17) The committee also noted the 1995 commentary to Canon 3E, suggesting that, even after disclosure, disqualification should be resolved on a case-by-case basis. (18) As a result of this analysis, the committee overruled JEAC Opinion 9356 to the extent that the former opinion automatically required a judge to recuse himself or herself after disclosing a social relationship. (19)

Business Relationships and Financial Dealings Between Lawyers and Judges

Closely related to the question of social relationships are those...