Miami-Dade Circuit Judge William Thomas. Photo: J. Albert Diaz/ALM.

A Miami condominium association and its president have asked the Third District Court of Appeal to remove Miami-Dade Circuit Judge William Thomas from five lawsuits disputing maintenance issues with its master association and developer after the judge affectionately placed his hands on opposing counsel Mary Barzee Flores' hands in a bench-side conversation.

Barzee Flores, who served on the Miami-Dade Circuit bench from 2003 to 2011, asked to approach the bench toward the end of a Jan. 17 status conference for a private conversation with Thomas about an unrelated matter. The pair chatted for a few minutes and were laughing and smiling, according to the petitions.

De Soleil South Beach Residential Condominium Association Inc. filed writs of prohibition, along with its president David Ocomo, a defendant in one of the cases.

After Ocomo saw the courtroom exchange between Thomas and Barzee Flores, he became concerned that their relationship was “so close and tender that it appeared familial or one based on a lifelong or extremely personal relationship,” according to the petitions.

The petitions also alleged that Thomas gave Barzee Flores “his rapt attention and respect” throughout the status conference, but “would look down or appear annoyed and even display a tone of hostility” to the other side.

The two had worked together as federal public defenders for the Southern District of Florida, and the condominium association had been concerned about their friendship before Thomas and Barzee Flores held hands, according to the petition.

Before the chat, Thomas had ruled in favor of the master association, — Barzee Flores' client, De Soleil South Beach Beach Association Inc.

On Jan. 28, the condominium association moved to disqualify Thomas, claiming he wasn't impartial. When Thomas denied them, they appealed to the Third DCA.

Counsel to South Beach Resort Development, Richard Jay Sarafan of Genovese Joblove & Battista in Miami, declined to comment on the case,but pointed to his client's response to the petition, branding it “legally insufficient.”

According to their response, Barzee Flores had approached Thomas to tell him about her new job with Florida Agriculture Commissioner Nikki Fried as deputy commissioner for consumer affairs — a job that's since taken her away from her firm and off the case.

Barzee Flores did not respond to a request for comment before deadline. Her former colleagues representing the master association, Jason S. Koslowe, Michael Blid and Kenneth Walton II were unavailable before deadline.

Counsel to the condominium association Jonathan Smulevich said Ocomo was upset by what he saw.

“My client felt it was quite unusual,” Smulevich said. “He was quite emotional about it and said, 'How can this happen in an American courtroom, where judges are basically socializing in open court?' ”

It's about the appearance of impropriety in Smulevich's view, as the conversation wouldn't have been a problem if it happened outside the courtroom, away from litigants.

“ I'm not saying people can't be friends, of course,” Smulevich said. “But there has to be a distinction of when you're outside the courtroom versus when you're inside the courtroom.”

According to Smulevich, litigants and lawyers were still in the courtroom as the status conference only went off the record when Barzee Flores asked to approach.

“It's unusual behavior to happen right after a hearing, for the judges to be laughing in court, touching each other,” Smulevich said. “It's not something clients would want to see.”

Ocomo said Tuesday he was shocked to see how close Thomas and Barzee Flores appeared.

“It took my faith away from the system,” he said. “People are allowed to have friends, but when you're in the court you're supposed to convey fairness.”

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Read the petition:

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'Ridiculous'

Brian L. Tannebaum, Special Counsel with Bast Amron in Miami. Courtesy photo.

Miami lawyer Brian Tannebaum of Bast Amron specializes in ethics and white-collar defense, and regularly gets calls from lawyers asking whether they should petition to remove a judge.

“If I had been asked about filing this motion I would have said, 'Don't file it,' ” Tannebaum said. “ I think it's ridiculous. Particularly because it's after losing a motion, it just kind of shows what the basis of the motion really is. 'We lost, we're upset, we want to raise this issue.' ”

It's not unusual for judges and lawyers to be friends, said Tannebaum, who stressed that it's a judge's job to ensure that doesn't affect their rulings on a case.

“ I'm friends with judges and they do me no favors when it comes to being in court,” Tannebaum said. “I've been before judges who have said, 'I'm very good friends with Mr. Tannebaum, we have a history together. Do you have an issue with that?' And I can't remember a time that a lawyer has said, 'Yes.' ”

Tannebaum worked with Thomas as a state public defender and said he's known as being “ straight down the middle when it comes to fairness.”

If a judge can't be impartial, they're expected to recuse themselves — like one judge did when Tannebaum, his former judicial campaign manager, appeared before him.

It's a balancing act, according to Jan Jacobowitz, legal ethics expert and law professor at the University of Miami.

“Even the appearance of impropriety is against the judicial canons,” Jacobowitz said. “And it's hard to know without being there, but we have to rely on our judges to know whether they can rule impartially or not. Miami has a very close-knit legal community, so there's a lot of overlapping relationships and people have to act professionally.”

 

 

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