But I’m a Friend of the Court and Other Predicaments: What Every Lawyer Should Know About the Florida Code of Judicial Conduct
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 & #x201c;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 93-56 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 circumstances in which a judge may have a business or financial connection to a lawyer. Canon 5 of the code addresses the implications of such relationships in two ways. First:
A judge shall conduct all of the judge’s extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.20
(1) A judge shall not engage in financial and business dealings that
(a) may reasonably be perceived to exploit the judge’s judicial position, or
(b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.21
In a number of ethics opinions over the years, the committee has moved toward a rule of mandatory disqualification for those judges who maintain any sort of business or financial relationship with a lawyer who practices before the judge.22 Such a rule brings into question the continued validity of some earlier opinions addressing the ramifications of financial and business relationships between a judge and a lawyer.23 At one time, the committee sought to draw a distinction between a mere financial connection and a true business relationship between a lawyer and a judge.24 The committee expressed its disapproval of judges presiding over cases involving lawyers with whom the judge maintains a business relationship.25 Nevertheless, the committee, perhaps somewhat defensively, observed that a judge may “freely socialize and otherwise associate with his friends, whether they are judges, attorneys, or businessmen.”26 Even though, in the inquiry in question, the judge and the attorney jointly owned a parcel of land, and had done so for many years, the committee concluded, “Judges need not recuse themselves from cases where their friends are counsel.”27 The committee reached this conclusion by observing that the purchase and coownership of a parcel of land is “neither a business/financial transaction, nor a frequent occurrence.”28
Subsequent opinions have developed a fairly clear rule that a judge must not hear cases involving an attorney with whom the judge has a business or financial relationship. In 1985, the committee stated that a judge may maintain a landlord/tenant relationship with an attorney from whom the judge previously purchased an office building and to whom the judge is obligated to pay pursuant to a purchase money mortgage.29 Although three members of the committee at that time felt that disclosure of the relationship with the attorney would sufficiently fulfill the judge’s ethical obligations, the other six committee members believed the judge should not sit on any cases involving the attorney.
At present, the rule appears to clearly require that the judge refrain from presiding over any cases involving an attorney with whom the judge maintains a financial relationship. For instance, a judge should not hear cases involving an attorney with whom the judge jointly owns a condominium unit.30 Even where a judge places management of an office building owned by the judge in a blind trust and then rents office space to attorneys, the judge must nonetheless decline to hear cases involving those lawyers.31 In reaching that conclusion, the committee noted the dictates of Canon 5D(1), which provides that a judge shall not engage in financial and business dealings that would involve the judge in frequent transactions or continuous business relationships with lawyers or other persons likely to come before the court on which the judge serves. Although acknowledging the existence of the blind trust, the committee concluded that the inquiring judge would not be insulated by such a device from the prohibitions of Canon 5D.32 Accordingly, the focus will properly be upon whether the judge has an actual conflict based upon the judge’s ownership, irrespective of whether the judge has taken good-faith steps to delegate management or participation in the business to another person or entity.33
Recently, the committee has expressly receded from opinions 74-4, 75-4, and 78-16.34 Accordingly, the committee will now apply a bright-line test requiring disqualification under Canon 3E(1) “if a judge is receiving payments from a former law firm pursuant to the terms of a promissory note.”35 This rule of disqualification will apply even though the judge in question has no direct financial interest in the law firm because, in the view of the committee, “the judge has an interest in the overall ability of the firm to make payments pursuant to the terms of the promissory note.”36
Lawyer Representing (or Opposing) a Judge
Over the years, the committee has responded to numerous inquiries concerning the dilemmas that arise where a judge, or a member of a judge’s family, is represented by a law firm, or where a judge is opposed by a law firm in a legal matter. In the earliest opinion on this subject, the committee, somewhat astonishingly, advised a judge that although the judge was presently represented by a local law firm in a matter pending in federal court, the judge need not “voluntarily recuse himself in either contested or uncontested matters wherein any member of the firm is attorney of record, but that he should acquaint himself with the relevant facts and offer to recuse himself upon request.”37 A majority of the committee did, however, respond that the judge in question should make “full disclosure” and proceed only “upon consent of all attorneys of record.”38
Most often the question now arises because of a concluded legal matter in which a lawyer either sided with or opposed the interest of the judge, and the judge wishes to know what rules apply regarding disclosure or disqualification. In the first ethics opinion to mention a time frame, the committee determined that a judge would not be prohibited from hearing cases involving attorneys who had recently represented the judge and the judge’s family in a personal injury action.39 Although the committee was unanimous in concluding that the judge would not be disqualified, the opinion noted, “[a]s a practical matter. . . you [should] allow several months to lapse before resuming the handling of such cases.”40 The committee added that even disclosure would not be necessary “after the lapse of a reasonable period of time.”41 One member of the committee appeared to define a reasonable period of time for disqualification as six months, but the committee as a whole did not adopt such a standard.42
In a 1993 opinion, the inquiring judge had been represented by an attorney three years before in a now-closed case.43 The inquiry asked whether the judge should make disclosure in every case involving a lawyer who had previously represented the judge and, further, whether the answer would be different if the representation had been concluded five or 10 years before. The inquiry also asked whether, after disclosure, recusal would be mandatory upon request of opposing counsel. A majority of the committee determined that disclosure would be generally unnecessary; however, if the inquiring judge continued to maintain strong social ties with the attorney in question, or the prior representation involved a high profile case or a case of great personal or monetary significance to the inquiring judge or the lawyer, disclosure would be appropriate.44 The committee majority felt that the question of disclosure must be determined on a case-by-case basis.45 Although not specifically referring to Canon 3E of the code, three members of the committee noted that the decision to disclose is not necessarily based on time, but rather is tested by determining whether an objective, disinterested person knowing all the circumstances would reasonably question the judge’s impartiality.46
In another opinion issued on the same day, the committee considered a situation involving legal representation of the judge in a transactional matter.47 The judge in question had been represented by a local law firm a year before in the sale and purchase of real estate. The committee unanimously determined that disclosure would not be mandated by these limited circumstances. Nevertheless, the committee again reminded the judge that the proper test would be “whether an objective, disinterested person knowing all the circumstances would reasonably question your impartiality because of the past relationship.”48 In terms of the time frame for disclosure, the committee seemed to suggest that one year would be appropriate, although the significance of such a suggestion is not clear given that the committee determined that no disclosure would be necessary.
The committee again addressed the topic of a judge’s involvement with a lawyer or law firm in companion opinions issued on the same day in May 1995.49 In opinion 95-15, the inquiring judge had been represented by an attorney eight years earlier, in a case involving custody of the judge’s son. Appearing to rely most heavily upon the passage of time, a majority of the committee determined that disclosure of the former representation would not be necessary.50 In the companion opinion, the inquiring judge had been represented a year before in a case involving insurance that had been settled within the judge’s policy limits. Noting the passage of one year and the “limited nature of the representation,” the committee determined that the code mandated neither disqualification nor disclosure.51
The committee has also considered a situation in which the inquiring judge had been the prevailing plaintiff in a civil suit and asked whether permanent disqualification from cases involving all of the defense counsel involved in the matter would be required.52 In this instance, the committee referred directly to the objective test set out by Canon 3E(1): “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. . . . ” The committee also referred to the specific prohibition of Canon 3E(1)(a) under which a judge is disqualified in any case in which the judge “has a personal bias or prejudice concerning a party or a party’s lawyer. . . . ” The committee concluded that Canon 3E did not mandate automatic disqualification under the facts raised in the inquiry, but advised the inquiring judge to determine whether the judge’s impartiality might reasonably be questioned in cases involving the former opposing counsel, and whether the judge actually harbored any personal bias or prejudice concerning the opposing lawyers.53
Recently, the committee has determined that current representation by an attorney will automatically place a judge in a posture of disqualification.54 The committee extended the rule to both contested and uncontested matters and further mandated disqualification even where such was not requested by the litigants or the lawyers. In the words of the unanimous committee: “It would be hard to imagine that litigants, even in uncontested matters, would not be distrustful of the impartiality of a judge in a matter in which a law firm presently representing a judge was the firm of record in a matter before that judge.”55 The automatic disqualification rule of Opinion 99-13 will also extend to a situation where the judge’s spouse is currently represented by an attorney.56 Moreover, the automatic disqualification rule extends both to the lawyer handling the actual representation of the judge and the lawyer’s firm.57
Membership or Participation in Voluntary or Special Interest Bar Association
Generally speaking, a judge may be a member or an officer of “an organization. . . devoted to the improvement of the law, the legal system or the administration of justice. . . . ”58 Nevertheless, the judge’s ability to participate in a voluntary organization of lawyers is tempered by the requirement that the judge must conduct “quasi-judicial activities” so that they do not “(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties.”59 Moreover, a judge should not serve as an officer, director, trustee, or nonlegal advisor to an organization that “(a) will be engaged in proceedings that would ordinarily come before the judge, or (b) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.”60
Under Canon 4, it is beyond question that a judge may belong to, and participate in, a local bar association.61 A judge may not, however, serve as president of a local bar association or even as an officer. The committee has consistently held the view that a judge should not be placed in the position of being a spokesperson for the bar association membership on matters involving the local bar.62 The committee has also expressed concern about the propriety of a judge seeking election over a lawyer member of the same association:
[T]he question would be raised whether the judge was exerting “subtle pressure” on lawyers who must litigate before him or her. Additionally, conflicts may arise between the interests and demands of the bar and the judiciary that may present difficulties for a judge purporting to act in an elected, representative capacity for members of the bar.63
Although a judge should not serve as an officer of a local bar association, no ethical impropriety arises from a judge serving as an appointed chair of a local bar association committee.64
Recently the committee fielded an inquiry that raised a new question concerning membership in voluntary bar associations. The inquiry asked whether a judge may maintain membership in a voluntary bar association that endorses judicial candidates.65 The committee acknowledged that Canon 4D generally permits judicial membership in such organizations, but noted “the code’s authorization is not absolute.”66 Noting that the commentary to Canon 4D(1) advises judges to consider the changing nature of some organizations, the committee observed “[T]he endorsement of judges and political candidates by bar associations represents a recent trend in our state that deviates from the traditional role of voluntary bar associations.”67 After a thorough review of opinions from Florida and from other states, the committee unanimously concluded that “membership in a voluntary bar association that endorses judicial candidates is proscribed by the Code of Judicial Conduct.”68 The committee expressed several ethical concerns with such membership, including the danger that a blanket endorsement by a voluntary bar association that includes judges could be construed as a tacit endorsement of a candidate by the judges who are members, and that judicial decisions favorable to the particular concerns or leanings of a voluntary bar association might be perceived by the public as motivated to obtain the endorsement of the organization of which the judge is a member.69
The committee has also looked at inquiries involving membership in certain special interest voluntary bar associations. Without explanation or elaboration, the committee has stated that a judge may be a member of the American Academy of Matrimonial Lawyers.70 A judge may also serve as chair of the Family Law Section of The Florida Bar, but must “avoid direct involvement in any activities of the Family Law Section which could reflect adversely on [the judge’s] impartiality. . . . ”71 A judge may be a member of the Florida Association for Women Lawyers, even at a time when that organization was actively involved in the campaign for passage of a constitutional amendment that would define “natural persons” who are equal before the law as “female and male alike.”72 The judge should not, however, be a member of the Academy of Florida Trial Lawyers.73 Membership in the academy might cast reasonable doubt on the judge’s capacity to act impartially and therefore is precluded by Canon 4A(1) of the code.74
The committee has drawn a careful distinction between membership in an “aligned” bar association such as the academy, and participation as a speaker or teacher at an event sponsored by such an organization.75 Because judges may and should ethically participate in the improvement of the law, the legal system, and the administration of justice, a judge may attend luncheons, receptions, or social events sponsored by plaintiffs’ or defense bar associations, and may participate in educational programs sponsored by these associations.76 Similarly, judges who may not belong to voluntary bar associations that endorse judicial candidates may attend functions and events sponsored by those bar associations.77
Judge’s Duty Concerning Lawyer Misconduct
Canon 3D(2) of the code directly addresses the disciplinary responsibilities of a judge with regard to members of the Bar: “A judge who receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar shall take appropriate action.”78 The code itself does not define the term “appropriate action.” The commentary adopted by the Supreme Court for Canon 3D advises, “Appropriate action may include direct communication with the. . . lawyer who has committed the violation, other direct action if available, or reporting the violation to the appropriate authority or other agency.” Further, according to the commentary, this canon contemplates discharge of the judge’s ethical obligation in cases of minor conduct problems solely by direct communication between the judge and the offender. Where a judge has knowledge, however, that “a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, [the judge] is required under this canon to inform the appropriate authority.”79
The duty to report covers not only misconduct, but also incompetence due to emotional or mental illness.80 Accordingly, Canon 3 of the code imposes upon judges “an absolute duty to report any instance where a lawyer, by reason of disease, physical or mental infirmity, alcoholism/drug addiction, intoxication, is unable to adequately represent his client.”81 The committee has cautioned that a judge has an obligation to give careful consideration before reaching conclusions that a violation of the Rules Regulating The Florida Bar has occurred. This obligation includes at least a limited requirement of investigation because, as the committee has stated, “under Canon 3D(2), the requirement to take appropriate action is not limited to cases in which the judge has actual knowledge.”82 The judge who suspects an ethical violation by a lawyer is “required to reach a reasoned determination of whether substantial likelihood exists that the lawyer has committed a violation of the Rules Regulating The Florida Bar.”83 The committee suggests that a judge who questions a lawyer’s conduct might, at the appropriate time, engage in a frank discussion with the lawyer.84 The obligation of a judge to reach a “reasoned determination” of whether a lawyer has committed a violation of the Rules Regulating The Florida Bar extends to a situation where the judge has reason to believe that a suspended attorney may be engaging in unauthorized law practice.85
A judge’s obligation to report unethical conduct by lawyers applies even though the code states that “a judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity.”86 Accordingly, a judge must report attorney misconduct where the misconduct is discovered during an in camera inspection by the judge, and the in camera inspection was occasioned by the attorney/judgment debtors exercise of the Fifth Amendment privilege against self-incrimination.87 The committee relied upon the mandatory nature of the Canon 3 directive that a judge must take appropriate action where a lawyer has committed an ethical violation, and also relied upon a broad statement by the Supreme Court concerning the obligation of a judge to maintain the ethical standards of the legal profession.88 Although acknowledging its mandatory duty to report under Canon 3D(2), at least one Florida court has expressed frustration with the failure of The Florida Bar to take action in the face of judicial reports of ethical improprieties by Florida Bar members.89
Judges, not lawyers, are subject to the code. Nevertheless, the code provides guidance for lawyers who become engaged (or entangled) with Florida judges. At least passing familiarity with the code is, therefore, a prerequisite for a lawyer seeking to attain the highest standards of professionalism in a Florida law practice.
1 See In re Code of Jud. Conduct, 643 So. 2d 1037 (Fla. 1994) (enacting the code); In re Code of Jud. Conduct, 656 So. 2d 926 (Fla. 1995); In re Code of Jud. Conduct, 659 So. 2d 692 (Fla. 1995); In re Code of Jud. Conduct, 662 So. 2d 930 (Fla. 1995); In re Code of Jud. Conduct, 675 So. 2d 111 (Fla. 1996); In re Code of Jud. Conduct, 695 So. 2d 352 (Fla. 1997).
2 See Petition of Comm. on Standards of Conduct for Judges, 327 So. 2d 5 (Fla. 1976); Petition of Comm. on Standards of Conduct for Judges, 367 So. 2d 625 (Fla. 1979); Petition of Comm. on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997); Amendment to Code of Jud. Conduct – Canon 7, 720 So. 2d 1079 (Fla. 1998).
3 Fla. Code Jud. Conduct Canon 2B.
4 Id. Canon 3E(1).
5 Id. Canon 3E(1)(a).
6 Id. Commentary to 3E(1); see Fla. JEAC Op. 99-2.
7 See Fla. JEAC Op. 75-29.
8 See Fla. JEAC Op. 89-3.
9 Fla. JEAC Op. 93-56.
11 See id.
12 See Fla. JEAC Op. 99-2.
13 See id.
14 See id.
15 Id. (quoting JEAC Op. 93-17).
16 Pool Water Products, 612 So. 2d at 706–07.
17 See W. I. v. State, 696 So. 2d 457 (Fla. 4th D.C.A. 1997) (disagreeing with appellant’s assertion that “the trial judge’s voluntary disclosure of friendship with the case worker was legally sufficient in and of itself”).
18 See In re Code of Jud. Conduct, 659 So. 2d 692 (Fla. 1995).
19 See Fla. JEAC Op. 99-2.
20 Fla. Code Jud. Conduct Canon 5A(1)-(3).
21 Id. Canon 5D(1)(a)-(b).
22 See Fla. JEAC Op. 00-34.
23 See Fla. JEAC Op. 82-12 (noting by a very slim majority that a judge need not recuse himself in cases involving a law firm in which one of the senior partners, along with the inquiring judge and others, co-owned and operated a motel, although the judge should not hear cases involving the actual business partners); Fla. JEAC Op. 78-16 (reaching same result where judge was the payee on a promissory note executed by members of the judge’s former professional association); Fla. JEAC Op. 75-7 (applying same rationale where a judge sold his interest in firm and lease of a building to remaining partners); Fla. JEAC Op. 74-4 (determining that a judge had no per se obligation to recuse himself from matters being handled by his former law firm where the judge continued to receive a predetermined amount in annual installments for payment of his interest in the former law firm).
24 See Fla. JEAC Op. 82-14.
25 See id.
29 See Fla. JEAC Op. 85-8.
30 See Fla. JEAC Op. 93-27.
31 See Fla. JEAC Op. 97-33.
32 See id.
33 Although Opinion 97-33 holds that the judge, as landlord, is disqualified under Canon 5D, the opinion also allows a judge in such a situation to utilize the remittal of disqualification procedure in Canon 3F: “A judge disqualified by the terms of section 3E may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.”
34 See Fla. JEAC Op. 00-34.
37 Fla. JEAC Op. 79-2, receded from in Fla. JEAC Op. 99-13.
39 See Fla. JEAC Op. 86-9.
42 See id.
43 See Fla. JEAC Op. 93-17.
44 See id.
45 See id.
46 See id.
47 See JEAC Op. 93-19.
49 See Fla. JEAC Ops. 95-15, 95-16.
50 See Fla. JEAC Op. 95-15.
51 Fla. JEAC Op. 95-16.
52 See Fla. JEAC Op. 97-12.
53 See id.
54 See Fla. JEAC Op. 99-13, receding from Fla. JEAC Op. 79-2.
56 See Fla. JEAC Op. 99-25.
57 See Fla. JEAC Ops. 99-13, 99-25.
58 Fla. Code Jud. Conduct Canon 4D.
59 Id. Canon 4A(1)–(3).
60 Id. Canon 4D(1)(a)–(b).
61 See Fla. JEAC Op. 84-4 (observing that a judge may attend meetings of, and accept complimentary membership in, a local bar association); see also Fla. JEAC Op. 00-20 (finding no impropriety with a judge attending a bar luncheon that is sponsored by law firms and parties likely to come before the judge’s court, and where attendance fees for the judiciary are waived).
62 See Fla. JEAC Ops. 79-15, 79-16.
63 Fla. JEAC Op. 94-44.
64 See id.
65 See Fla. JEAC Op. 01-15.
69 See id.
70 See Fla. JEAC Op. 80-8.
71 Fla. JEAC Op. 84-13.
72 Fla. JEAC Op. 98-31.
73 See Fla. JEAC Op. 95-21.
74 See id.
75 See Fla. JEAC Ops. 87-3, 00-14.
76 See Fla. JEAC Ops. 87-3, 00-14. As of 1993, the committee has found no problem with a judge belonging to the American Bar Association, because that organization is devoted to the goals mentioned in Canon 4 of the code. See Fla. JEAC Op. 93-5. Nevertheless, the committee noted in connection with ABA membership, “the changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which he is affiliated to determine if it is proper for him to continue his relationship with it.” Id.
77 See Fla. JEAC Op. 01-15.
78 Fla. Code Jud. Conduct Canon 3D(2).
79 Commentary added by In re Code of Jud. Conduct, 662 So. 2d 930 (Fla 1995).
80 See Fla. JEAC Op. 83-8.
81 Id. The committee also noted that, because such reporting is ethically required of a judge, it would be “incongruous if a judge were not immune for acts commanded by the disciplinary rule and the canons of ethics.” Id.
82 Fla. JEAC Op. 97-17.
84 See id.
85 See Fla. JEAC Op. 01-06. See also Fla. JEAC Op. 94-46 (noting a judge’s ethical obligation to “assert disciplinary jurisdiction” in cases of unauthorized practice of law or practice by a disbarred or suspended lawyer).
86 Fla. Code Jud. Conduct Canon 3B(11).
87 See Fla. JEAC Op. 98-21.
88 & #x201c;All Florida judges are, first and foremost, attorneys and members of The Florida Bar. As such, Florida judges, just like every other Florida attorney, have an obligation to maintain the integrity of the legal profession and report to The Florida Bar any professional misconduct of a fellow attorney. 5-H Corp. v. Padovano, 708 So. 2d 244, 246 (Fla. 1997) (citation omitted; quoted in Fla. JEAC Op. 98-21).
89 See Johnnides v. Amoco Oil Co., 778 So. 2d 443, 445 (Fla. 3d D.C.A. 2001) (“[O]f the many occasions in which members of this court reluctantly and usually only after agonizing over what we thought was the seriousness of doing so—have found it appropriate to make such a referral about a lawyer’s conduct in litigation, none has resulted in the public imposition of any discipline—not even a reprimand—whatever.”) (citations omitted).
Judge Charles J. Kahn has served on the First District Court of Appeal since 1991. He received his J.D., with honors, from the University of Florida College of Law in 1977 and his B.A., cum laude , from Vanderbilt University in 1973. He has been a member of the Florida Supreme Court Judicial Ethics Advisory Committee for eight years and has twice chaired the committee.
Judge Kahn wishes to acknowledge the editing assistance of his senior law clerk, Caroline E. Johnson.