No Automatic Recusal

A trip to the Maine home of an attorney eight or nine years ago does not automatically require the disqualification of a judge in matters involving the attorney’s clients, according to a recent opinion of the Florida Judicial Ethics Advisory Committee. The judge had previously entered a standing recusal order in the attorney’s matters. They remain friendly and occasionally email each other. The committee opines that the trip must be disclosed to the opposing side for purposes of considering a motion to disqualify:

Under the facts provided here, the Committee concludes that thelapse of eight to nine years greatly lessens the chance that adispleased litigant will blame his or her loss on the judge’sacceptance of a gift from opposing counsel.  Accordingly, so long asthe judge concludes that there is no personal bias, the Committeebelieves that automatic recusal is no longer necessary.

As to the remaining issue of disclosure, the Committee concludesthat disclosure on the record of the judge’s prior standing recusalorder and the judge’s relationship with the attorney is required.  Thejudge’s obligation to disclose relevant information is broader than theduty to disqualify.  In re Frank, 753 So. 2d 1228, 1239 (Fla. 2000); Stevens  v. American Healthcare Corp.,919 So. 2d 713, 715 (Fla. 2d DCA 2006).  The Commentary to Canon 3E(1)states that “[a] judge should disclose on the record information thatthe judge believes the parties or their lawyers might consider relevantto the question of disqualification, even if the judge believes thereis no real basis for disqualification.”

The Committee concludes that parties or their lawyers who appearbefore the judge might consider the gift of a long weekend trip to thelawyer’s home in Maine to be relevant to the question ofdisqualification, particularly in light of the fact that the judge andthe lawyer continue to email each other regularly.  See Fla. JEAC 89-03(accepting contributions to son’s quail-raising hobby, hunting withattorney, and use of attorney’s North Carolina cabin requiresdisclosure of the relationship and benefit received); but see Fla. JEAC 99-2 (judge is in best  position to make decision as to whether disclosure is required). 

Although the nature of the emails has not been described, the factof the continuing correspondence by email and its regularity suggestssome degree of personal familiarity beyond the type of ordinary socialpleasantries one would expect to be exchanged between a judge and anattorney who regularly appears before the judge.   Accordingly, theCommittee further advises that if the judge decides to cease thepractice of automatic recusal from cases involving the attorney and theattorney’s firm, the judge should either discontinue the practice ofregular email with the attorney or should disclose the fact of thosecommunications now and for some reasonable period of time aftertermination of the practice. 

Finally, the Committee reminds the judge that “disclosure ofinformation is not an admission of bias but is necessary to enable aparty to make an informed decision as to whether or not to seekdisqualification.”  See Fla.  JEAC Op. 04-0601-17.  The disclosure of a  social or personal relationship does not automatically trigger an obligation to  disqualify.  See Stevens, 919 So. 2d at 715; Commentary to Canon 3E(1).

(Mike Frisch)