JUDICIAL ETHICS BENCHGUIDE: ANSWERS TO FREQUENTLY ASKED QUESTIONS June 2020 A Project of the Florida Court Education Council’s Publications Committee ABOUT THE AUTHOR Blan L. Teagle is currently the Executive Director of the Judicial Qualifications Commission. He served from 2003–2020 as a Deputy State Courts Administrator of the Florida Office of the State Courts Administrator. At the time of writing the first edition of this benchguide, he was the Director of the Center for Professionalism at The Florida Bar. From 1989 to 1998, Mr. Teagle served as staff counsel to the Judicial Ethics Advisory Committee as part of his duties as a senior attorney at the Office of the State Courts Administrator. He holds a B.A. from the University of the South (Sewanee), a J.D. from the University of Florida College of Law, where he was editor-in-chief of the University of Florida Law Review, and an M.P.S. (a graduate degree in pastoral theology) from Loyola University, New Orleans. ii ACKNOWLEDGMENTS The author would like to thank Susan Leseman, John Meeks, and Deborah Lacombe for their collaboration on previous judicial ethics materials upon which this benchguide is based. He would also like to thank Todd Engelhardt for his research assistance with the first edition of this benchguide. DISCLAIMER Viewpoints presented in this publication do not reflect any official policy or position of the Florida Supreme Court, the Office of the State Courts Administrator, the Florida judicial conferences, the Florida Court Education Council, or the Florida Court Education Council’s Publications Committee. Nor do they represent any official position of the Florida Judicial Qualifications Commission; the 2020 edition was edited prior to Blan Teagle assuming his role with the JQC. Users of this benchguide should always check cited legal authorities before relying on them. FLORIDA COURT EDUCATION COUNCIL’S PUBLICATIONS COMMITTEE The Honorable Angela Cowden, Tenth Circuit, Chair The Honorable Cory J. Ciklin, Fourth District Court of Appeal The Honorable Josephine Gagliardi, County Judge, Lee County Ms. Gay Inskeep, Trial Court Administrator, Sixth Circuit The Honorable Spencer Multack, County Judge, Miami-Dade County The Honorable Mark Yerman, County Judge, Citrus County Ms. Arlene Stevens, Child Support Hearing Officer, Sixth Circuit The Publications Committee acknowledges and thanks the Judicial Ethics Advisory Committee for its helpful editorial assistance with this benchguide. PUBLICATIONS COMMITTEE LEAD PROJECT STAFF Ms. Madelon Horwich, Senior Attorney, Office of Court Education, Office of the State Courts Administrator © 2005, 2010, 2012, 2013, 2014, 2015, 2016, 2018, 2020 Florida Office of the State Courts Administrator. All Rights Reserved. iii Judicial Ethics Benchguide June 2020 Update The Judicial Ethics Benchguide has been updated. The updates are shown below, along with the chapter, section, and page number where they are located. Chapter 1: Use and Abuse of Judicial Power 4. May Judge Write Letters of Recommendation or Serve As Character Witness? Page 10 A judge may serve on a committee interviewing applicants who seek admission to the judge’s alma mater, may provide his or her impression of the applicant, and may recommend the student for admission, as long as the judge’s title is not mentioned in or as a part of the recommendation. Opinion 18-31. 5. May Judge, Judicial Assistant, or Judicial Candidate Participate in Social Networking Websites? Page 12 • Opinion 13-14 (judge running for reelection may create Twitter account, subject to certain limitations and with caveat to minimize possibility of use as possible avenue for ex parte communication; judge may also allow campaign manager to create and maintain Twitter account, which is “a more prudent option in that it would eliminate the potential for ex parte communication”). 7. When Is Judge’s Use of Judicial Letterhead Improper? Page 16 A senior judge who is retiring and not subject to recall may use his or her name along with the designations of “Honorable” and “Retired” on a program at an event commemorating the judge’s career, but may not use similar designations on personal or mediation/legal-related stationery. Opinion 19-01. A judge may use judicial letterhead to write a letter to a law school explaining family circumstances of which the judge has knowledge so a student’s financial aid can continue. Opinion 20-12. Judicial Ethics Benchguide 2020 iv 10. Does Judge Have Obligation to Report Possible Criminal Activity Judge Becomes Aware of During Proceeding? Page 17 Under section 39.201, Florida Statutes, judges must report to DCF instances of child abuse, neglect, or abandonment that are brought to the judge’s attention. The reporting does create a legally sufficient basis for the reporting judge to be disqualified from a case. Opinion 19-13. Chapter 2: Ex Parte Communications 1. What Are Ex Parte Communications and When and Why Are They Prohibited? Pages 21–22 In Opinion 20-05, the committee opined that it would not violate the Canons of Ethics for a judge presiding over a dependency/delinquency docket to meet with Children’s Legal Services attorneys “to discuss docket management, scheduling issues and expectations for motion practice, without also inviting other stakeholders including attorneys for the Guardian Ad Litem Program, the Office of the Regional Counsel, the office of Public Defender, the office of the State Attorney, the Department of Juvenile Justice, and private attorneys . as long as the judge does not discuss any pending or impending cases thereby violating the rules against ex parte communication and does not create any doubt as to the judge’s impartiality.” But it cautioned that “it would be prudent for the inquiring judge to decline the meetings or invite all of the stakeholders to be present.” 3. What Are Some Examples of Violations of Prohibition Against Ex Parte Communications? Page 23 In re Scaff, __ So. 3d __, 2020 WL 2768993 (Fla. 2020) (court approved stipulation for public reprimand of judge who engaged in improper ex parte communications with defendants, witnesses, litigants, family members, and others regarding cases or matters pending, impending, or likely to come before him). Chapter 3: Controlling Attorneys’ Manifestations of Bias or Prejudice 1. Does Code of Judicial Conduct Require Judges to Discipline or Report Attorneys for Manifestations of Bias or Prejudice? Judicial Ethics Benchguide 2020 v Page 26 See also Opinions 19-14, 19-23. Chapter 5: Disqualification and Recusal 11. Is Recusal Required When Lawyer Appearing Before Judge Has Voiced Opposition to Judge’s Election? Page 46 A judge is not permanently disqualified from presiding over cases in which a party is represented by the judge’s former campaign opponent or the opponent’s law partners, and the judge may rescind a blanket disqualification order after a reasonable period of time has passed. Opinion 19-03. Nor must a judge automatically recuse from all cases in which an attorney was an opponent of the judge in a recent contested election. Opinion 19-12. In Sands Pointe Ocean Beach Resort Condominium Association, Inc. v. Aelion, 251 So. 3d 950 (Fla. 3d DCA 2018), the court held that when a member of a large firm is the opponent of the judge in an upcoming judicial election, disqualification of the entire firm is not required. 13. Prior ServiceParticipation: Does Judge’s Prior ServiceParticipation as Lawyer, Lower Court Judge, Party, or Witness, or Party Require Disqualification? Page 51 A judge need not disqualify himself or herself from all cases involving an insurance company that amicably settled a claim made by the judge, but should disclose to the parties when the judge made a claim against an insurer who is a party. Opinion 19-24. 15. Must Judge Disqualify Self When Judge or Member of Judge’s Family Is Party, Attorney, Financial Interest Holder, or Likely Material Witness in Proceeding, or Lower Court Judge in Decision to Be Reviewed by Judge? Page 55 See also Opinion 19-16. Page 56 Disqualification is required when the judge’s brother-in-law is a partner in a large Judicial Ethics Benchguide 2020 vi law firm whose members may appear before the judge. Opinion 20-08 (committee distinguished situation from that in Sands Pointe Ocean Beach Resort Condominium Association, Inc. v. Aelion, 251 So. 3d 950 (Fla. 3d DCA 2018), which also involved “the constitutional issue of encouraging free and fair elections”). 16. What Is Judge’s Responsibility When Parent, Spouse, or Child Is Employed by or Works with Firm or Governmental Entity That Appears Before Court in Capacity of Party’s Legal Representative? Pages 58–59 In Opinion 19-17, the committee advised that a judge whose lawyer-parent is no longer associated with the judge’s former law firm need not continue recusing from the law firm’s cases. However, if the parent owns the building leased to that law firm, the judge must recuse from cases the firm has before the judge, unless the parent’s interest is de minimis. In Opinion 19-08, the committee advised that a judge need not necessarily recuse himself or herself when the judge’s spouse’s law partner served as chair of a Florida Bar section that filed an amicus brief in the case. In Opinion 19-06, the committee advised that a judge may allow an adult child living in the judge’s home to be employed part-time by a local attorney. The child’s employment would not entail participation in cases before the judge, but the judge “should remain vigilant to the possibility that the child might participate indirectly in cases over which the judge is presiding.” Chapter 6: Civic, Charitable, Quasi-Judicial, and Extrajudicial Governmental Activities 2. May Judge Serve on Board of Directors of Charitable Organization? Page 65 A judge may serve as a member of the House of Deputies of the Episcopal Church.