Daily Business Review Features The Law Offices of Robin Bresky’s Appellate Matter Holding the Disqualification of Trial Judge

Florida Rule of Judicial Administration 2.330 and section 38.10, Florida Statutes, govern the disqualification of trial judges. A party may seek to have a judge disqualified where the party “fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” “The question of disqualification focuses on those matters from which a litigant may reasonably question a judge’s impartiality rather than the court’s own perception of its ability to act fairly and impartially.” Valdes-Fauli v. Valdes-Fauli, 903 So. 2d 214, 217 (Fla. 3d DCA 2005).

In Becker v. Becker, No. 3D19-1493, 2019 WL 4458397 (Fla. 3d DCA Sept. 18, 2019), the husband discovered, during the pendency of his divorce litigation, that the wife’s trial counsel previously represented the Miami-Dade County trial judge in the judge’s own contested divorce case approximately three years before the husband filed his petition for dissolution of marriage. Notably, neither the judge nor the wife’s counsel disclosed that attorney-client relationship to the husband or the husband’s trial attorney. Fearing that the judge was biased in favor of the wife’s counsel and that the husband would not receive a fair trial stemming from the nondisclosure, the husband filed a Verified Motion to Disqualify the trial judge one day after the husband learned of the prior attorney-client relationship. The judge denied the Motion to Disqualify, finding it to be legally insufficient.

The husband then filed a Petition for Writ of Prohibition with the Third District Court of Appeal (“Third DCA”) to review the trial judge’s order denying the disqualification and prohibit the judge from presiding over the parties’ divorce case. The husband argued that his motion was legally sufficient where he established a well-grounded fear that he would not receive a fair trial as a result of the wife’s counsel’s previous representation of the trial judge.

The Third DCA recently held that “[t]he trial judge’s failure to disclose the prior attorney-client relationship with the wife’s attorney created . . . objectively reasonable fears of bias and that the husband would not receive a fair and impartial proceeding.” In so concluding, the Third DCA noted Canon 3E of Florida’s Code of Judicial Conduct, which states in pertinent part:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: . . . (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer . . . .

The district court also cited to the commentary to Canon 3E(1), which states, “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” The district court cautioned that the trial judge, in a contested divorce proceeding, “should, at the first practicable instance,” disclose that one of the parties’ attorneys represented the judge in the judge’s personal divorce case. The Court explained that reasonable people might consider the prior representation pertinent to the question of the judge’s impartiality.

Having concluded that the husband’s Verified Motion to Disqualify was legally sufficient and should have been granted, the Third DCA accordingly granted the Husband’s Petition for Writ of Prohibition.

The Third DCA in Becker relied on the Fourth District Court of Appeal decision of Ballard v. Campbell, 127 So. 3d 693, 695 (Fla. 4th DCA 2013), for the general rule that “disqualification is required if counsel for one of the parties is representing or has recently represented the judge.” Both Ballard and Becker were handled and won by The Law Offices of Robin Bresky in the appellate courts.

The Daily Business Review’s article featuring the Becker matter is found at: https://www.law.com/dailybusinessreview/2019/09/24/appellate-court-advises-miami-judge-to-recuse-herself-for-not-disclosing-history-with-attorney.