An opinion from Florida’s Judicial Ethics Advisory Committee
ISSUES
1. May a judge accept a fee, after taking the bench, for a case the judge referred to a law firm prior to the judge taking the bench?
ANSWER: Yes, but only on a quantum meruit basis.
2. Whether the judge is disqualified from presiding over cases in which the law firm to whom the judge made the referral is involved.
ANSWER: Yes.
On the fee issue
any division of the contingency fee to which the inquiring judge may be entitled must be calculated as of the date which the judge took office on a quantum meruit basis. The Florida Bar has recognized that the payment of a referral fee to an attorney unable to perform all obligations required by Rule 4-1.5(g) is made on a quantum meruit basis.
This quantum meruit approach is both logical and reasonable. . . . [A] referring attorney who is suspended or disbarred during the course of the representation should not be denied all of his or her portion of the fee. On the other hand, a referring attorney who is suspended or disbarred at some point during the representation becomes unable to fulfill the contractual obligations of responsibility and availability and, therefore, should not receive the entire portion of the fee that he or she contracted for in the required written agreement. Instead, the suspended or disbarred referring attorney ethically may receive payment on a quantum meruit basis for the responsibility that he or she did assume and the time that he or she was available for consultation while licensed to practice.
On disqualification
The Committee has also consistently found that mandatory disqualification is required where a judge is receiving payments from a lawyer appearing before the judge. See Fla. JEAC Ops. 85-8, 87-24. In the most similar situation, the Committee held that a judge was disqualified from cases involving his prior law firm where the law firm repurchased a judge’s shares and gave him a promissory note for a fixed repurchase price with a payout of six years. SeeFla. JEAC Op. 00-34 (Amended).
(Mike Frisch)