Ethics Of Judges Reporting Lawyers

The Florida Judicial Ethics Advisory Committee opines

Opinion Number: 2018-18
Date of Issue: July 23, 2018

Must a judge disclose to an attorney that the judge has filed a bar complaint against that attorney?

ANSWER: No. However, the judge may be required to disclose such filing in certain cases to the parties which would necessitate disclosure to the reported attorney.

The inquiring judge recently filed a complaint with the Florida Bar against an attorney who appears regularly before the Court. The judge was informed by the Bar representative that since the complaint was based on a “filing” made by the attorney, the Bar could act as the petitioner and the judge would not be named as the complainant. The Bar representative informed the inquiring judge that proceeding in this way is a courtesy extended to members of the judiciary.

The inquiring judge suggests that if he/she is not named as the petitioner in the complaint, the attorney will not know that the inquiring judge made the complaint unless the judge discloses that fact to the attorney. The judge inquires as to whether he/she is required by the Code of Judicial Ethics to disclose to the attorney that the judge filed a complaint with the Florida Bar against that attorney.

Reasoning and precedent

The issue of whether a judge must disclose the filing of a bar complaint to the parties was specifically addressed by this committee in JEAC Op. 05-16. The majority of the committee determined that a judge, who files a bar complaint against an attorney for actions of the attorney on a case pending before the judge, should disclose the filing of the bar complaint to the parties. See JEAC Op. 05-16. The committee based its opinion on the commentary to Canon 3(E)(1) which provides that a judge should disclose information to the parties that might be relevant even if the judge believes there is no basis for disqualification. Disclosure to the parties would by necessity require notification to the reported attorney under these circumstances.

The committee further addressed in JEAC Op. 05-16, whether the judge was required to disclose such filing in subsequent cases in which the attorney appears before the reporting judge. The majority of the members of the committee determined that the inquiring judge did not have to disclose the filing of the bar complaint. This opinion appears to be based only on the judge’s mere reporting of the attorney’s misconduct to the Bar, excluding any other factors that could call into question the judge’s personal bias or prejudice concerning the reported attorney.

A judge’s mere reporting of perceived unprofessional conduct to the Florida Bar, in and of itself, is not legally sufficient to support a motion for disqualification. See 5-H Corp. v. Padovano, 708 So. 2d at 248 (emphasis added). However, it is not possible to determine in each and every circumstance whether other factors may exist that, coupled with the judge’s filing of a complaint with the Bar against the attorney, might support a motion for disqualification. As such, the issue of disclosure to the parties in subsequent litigation and essentially to the reported attorney should be addressed on a case-by-case basis. See Kline v. JRD Mgmt. Corp., 165 So. 3d 812, 814-15 (Fla. 1st DCA 2015).

This does not suggest that the judge is required to disclose the filing of the complaint to the attorney, absent the attorney appearing before the judge in the pending case in which the attorney’s actions were reported, or in subsequent cases under circumstances beyond the judge’s mere filing of the complaint with the Bar.

To the extent that this opinion differs from the committee’s opinion in JEAC Op. 05-16, the same is distinguished by factors beyond the mere reporting of an attorney that would potentially call into question any personal bias or prejudice the judge may have concerning the reported attorney.

(Mike Frisch)