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Judicial Ethics Benchguide JUDICIAL ETHICS BENCHGUIDE: ANSWERS TO FREQUENTLY ASKED QUESTIONS November 2018 A Project of the Florida Court Education Council’s Publications Committee ABOUT THE AUTHOR Blan L. Teagle is currently 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. 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. 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, Lee County The Honorable Ilona Holmes, Seventeenth Circuit The Honorable Matt Lucas, Second District of Appeal Ms. Gay Inskeep, Trial Court Administrator, 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, Publications Unit, Office of the State Courts Administrator © 2005, 2010, 2012, 2013, 2014, 2015, 2016, 2018 Florida Office of the State Courts Administrator. All Rights Reserved. Judicial Ethics Benchguide November 2018 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. Introduction 3. How is Code Enforced? Page xxvi Only 2022 judges have been removed from office for improper conduct. See In re Santino, __ So. 3d __, 2018 WL 5095128 (Fla. 2018); In re DuPont, 252 So. 3d 1130 (Fla. 2018); Chapter 1: Use and Abuse of Judicial Power 4. May Judge Write Letters of Recommendation or Serve As Character Witness? Page 10 There is no stage in the investigative process of the Florida Board of Bar Examiners when a judge can voluntarily write a letter commenting on the character and fitness of an applicant for membership to The Florida Bar. Opinion 18-10. Page 11 And a judge may write a letter to a city council in support of the dedication of a baseball field in the name of the judge’s deceased former bailiff; the letter would not be used “for investigatory and/or adjudicatory proceedings where legal rights, duties, privileges, or immunities would be decided.” Opinion 17-09. 5. May Judge, Judicial Assistant, or Judicial Candidate Participate in Social Networking Websites? Page 12 In Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Association, __ So. 3d __, 2018 WL 5994243 (Fla. 2018), the Florida Supreme Court disapproved Domville and approved the decision of the Third District in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Association, 229 So. 3d 408 (Fla. 3d DCA 2017), and held that “an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, Judicial Ethics Benchguide 2018 v does not constitute a legally sufficient basis for disqualification.” • Opinion 17-24 (Election) (judicial candidate may not establish open Facebook page to ask individuals to sign petitions for candidate to qualify to run without paying qualifying fee, but committee of responsible persons may, as long it is clear that Facebook page is not maintained by candidate personally). Chapter 2: Ex Parte Communications 3. What Are Some Examples of Violations of Prohibition Against Ex Parte Communications? Pages 21–22 In re Contini, 205 So. 3d 1281 (Fla. 2016) (court ordered public reprimand, letter of apology, judicial mentoring for three years, completion of stress management program, and assessment of costs for judge “(1) sending an ex parte e-mail to the Broward Public Defenders Office; (2) failing to seek a recusal or transfer when an appeal effectively froze his division; and (3) making impertinent and belittling remarks in open court about a pending matter”). Chapter 5: Disqualification and Recusal 7. When Does Manifestation of Personal Bias or Prejudice Against Attorney Disqualify Judge? Page 41 In In re Yacucci, 228 So. 3d 523 (Fla. 2017), a judge was suspended for 30 days without pay and ordered to complete a judicial ethics course and pay JQC costs, based on an acrimonious relationship between the judge and an attorney “marked by lawsuits, a public altercation and televised disparagement, the jailing of [the attorney] for contempt, judicial campaign disputes, unsolicited attempts to influence a petition for writ of prohibition, and multiple refusals to disqualify himself.” 9. Must Judge Recuse When Judge Has Reported Party’s Attorney to The Florida Bar? Page 43 Opinion 2018-18, Judicial Ethics Benchguide 2018 vi 11. Is Recusal Required When Lawyer Appearing Before Judge Has Voiced Opposition to Judge’s Election? Page 45 A judge need not recuse merely because an attorney who regularly appears before the judge is considering running against the judge, but the judge may not ask the attorney directly whether he or she intends to run. Opinion 18-03. 13. Prior Service: Does Judge’s Prior Service as Lawyer, Lower Court Judge, or Witness Require Disqualification? Page 49 ; see also Opinion 12-08 and Opinion 17-17 (recusal not required unless past representation affected judge’s ability to be fair, but judge should disclose past representation to parties and lawyers) 14. When Is Economic Interest Disqualifying? Page 52 In Opinion 18-11, the committee advised that a judge may continue to participate in the judge’s former law firm’s 401(k) retirement plan where the firm does not contribute to the plan or pay the plan’s management fees, the account is an individual account and the judge controls the assets in it, and it is managed by an independent investment firm. But the judge must disclose the judge’s participation in the firm’s 401(k) plan to the attorneys and parties in any case in which members of the judge’s former law firm are involved. 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 In Opinion 17-20, the committee advised a judge who had inquired about several issues involving relatives: The judge must be disqualified if an attorney from a law firm in which the judge’s brother-in-law is a partner appears as counsel in a case before the judge (subject to remittitur); the judge may enter an agreed-upon order submitted by the parties appointing the judge’s cousin as a mediator, if the selection of the cousin was initiated by the parties; and the judge need not necessarily be disqualified if the wife or daughter of the judge’s cousin appears Judicial Ethics Benchguide 2018 vii before the judge, but disqualification may be required depending on the relationship between them, and the judge must disclose the relationship. A general magistrate does not need to recuse from presiding over Marchman Act proceedings in which the appearing attorney represented the magistrate’s brother- in-law in a Marchman Act case before another general magistrate in the same circuit, unless a personal bias or prejudice exists. But disclosure is required “until no reasonable person would consider the information relevant.” Opinion 17-21. 16. What Is Judge’s Responsibility When Spouse or Child Is Employed by or Works with Firm or Governmental Entity That Appears Before Court in Capacity of Party’s Legal Representative? Page 56 Opinion 18-26 (judge may preside over circuit court criminal division if judge’s child is assistant public defender assigned to separate circuit court criminal division before another judge in same county, and judge need not automatically disclose that judge’s child’s employment); Page 57 In Opinion 18-13, the committee recommended that a judge not preside over cases which the spouse supervises or in which the judge’s spouse is the attorney of record. In Opinion 17-03, the committee advised that a judge must disclose that a lawyer appearing before the judge has referred a case to the judge’s spouse who is a lawyer and who may have shared, or will share, a fee with the referring lawyer. However, if the judge discloses that business relationship, recusal is not automatically required. 19. Must Judge Recuse Self When Law Firm Appearing in Case Before Judge Represented Judge and/or Family in Prior Case? Page 59 A judge does not have to automatically recuse without request when a close relative and that relative’s company are represented by a law firm whose lawyers have unrelated cases pending before the judge, but disclosure of the firm’s relationship with the judge’s spouse is required.
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