{"id":1941,"date":"2019-11-14T06:26:59","date_gmt":"2019-11-14T06:26:59","guid":{"rendered":"https:\/\/bresky-merger.local.com\/posts\/the-daily-business-review-featured-the-law-office-of-robin-breskys-appellate-matter-that-concluded-that-the-trial-judge-should-have-disqualified-herself\/"},"modified":"2019-11-14T06:26:59","modified_gmt":"2019-11-14T06:26:59","slug":"the-daily-business-review-featured-the-law-office-of-robin-breskys-appellate-matter-that-concluded-that-the-trial-judge-should-have-disqualified-herself","status":"publish","type":"post","link":"https:\/\/ssrga.com\/appellate\/the-daily-business-review-featured-the-law-office-of-robin-breskys-appellate-matter-that-concluded-that-the-trial-judge-should-have-disqualified-herself\/","title":{"rendered":"Daily Business Review Features Bresky Law’s Appellate Matter Holding the Disqualification of Trial Judge"},"content":{"rendered":"

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 \u201cfears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.\u201d \u201cThe question of disqualification focuses on those matters from which a litigant may reasonably question a judge\u2019s impartiality rather than the court\u2019s own perception of its ability to act fairly and impartially.\u201d Valdes-Fauli v. Valdes-Fauli<\/em>, 903 So. 2d 214, 217 (Fla. 3d DCA 2005).<\/p>\n

In Becker v. Becker<\/em>, 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\u2019s trial counsel previously represented the Miami-Dade County trial judge in the judge\u2019s own contested divorce case approximately three years before the husband filed his petition for dissolution of marriage. Notably, neither the judge nor the wife\u2019s counsel disclosed that attorney-client relationship to the husband or the husband\u2019s trial attorney. Fearing that the judge was biased in favor of the wife\u2019s 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.<\/p>\n

The husband then filed a Petition for Writ of Prohibition with the Third District Court of Appeal (\u201cThird DCA\u201d) to review the trial judge\u2019s order denying the disqualification and prohibit the judge from presiding over the parties\u2019 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\u2019s counsel\u2019s previous representation of the trial judge.<\/p>\n

The Third DCA recently held that \u201c[t]he trial judge\u2019s failure to disclose the prior attorney-client relationship with the wife\u2019s attorney created . . . objectively reasonable fears of bias and that the husband would not receive a fair and impartial proceeding.\u201d In so concluding, the Third DCA noted Canon 3E of Florida\u2019s Code of Judicial Conduct, which states in pertinent part:<\/p>\n

(1) A judge shall disqualify himself or herself in a proceeding in which the judge\u2019s 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\u2019s lawyer . . . .<\/p>\n

The district court also cited to the commentary to Canon 3E(1), which states, \u201c[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.\u201d The district court cautioned that the trial judge, in a contested divorce proceeding, \u201cshould, at the first practicable instance,\u201d disclose that one of the parties\u2019 attorneys represented the judge in the judge\u2019s personal divorce case. The Court explained that reasonable people might consider the prior representation pertinent to the question of the judge\u2019s impartiality.<\/p>\n

Having concluded that the husband\u2019s Verified Motion to Disqualify was legally sufficient and should have been granted, the Third DCA accordingly granted the Husband\u2019s Petition for Writ of Prohibition.<\/p>\n

The Third DCA in Becker<\/em> relied on the Fourth District Court of Appeal decision of Ballard v. Campbell<\/em>, 127 So. 3d 693, 695 (Fla. 4th DCA 2013), for the general rule that \u201cdisqualification is required if counsel for one of the parties is representing or has recently represented the judge.\u201d Both Ballard<\/em> and Becker<\/em> were handled and won by Bresky Law in the appellate courts.<\/p>\n

The Daily Business Review\u2019s article featuring the Becker<\/em> 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 \u201cfears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.\u201d \u201cThe question of…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1811,1807,1806,1830,1838,1827],"tags":[1843],"class_list":["post-1941","post","type-post","status-publish","format-standard","hentry","category-4th-dca-rulings","category-bresky-appellate-cases","category-family","category-general","category-notable-cases","category-u-s-court-of-appeals","tag-family-marital"],"acf":[],"_links":{"self":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/1941","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/comments?post=1941"}],"version-history":[{"count":0,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/1941\/revisions"}],"wp:attachment":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/media?parent=1941"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/categories?post=1941"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/tags?post=1941"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}