The Honorable Marcia Del Rey, 11th Judicial Circuit of Florida. Courtesy photo The Honorable Marcia Del Rey, Eleventh Judicial Circuit of Florida. Courtesy photo

Florida's Third District Court of Appeal ruled a Miami-Dade Circuit judge presiding over a divorce case should have disclosed she'd previously retained one of the attorneys involved.

The appellate court issued an order Wednesday finding Omer Becker's petition to disqualify Miami-Dade Circuit Judge Marcia Del Rey from his dissolution of marriage proceedings was legally sufficient. The opinion granted Becker's petition but refrained from issuing the writ against Del Rey, as the appeals panel felt "confident that the trial judge will disqualify herself from the proceedings."

The matter reached the Third DCA after Becker learned Leinoff & Lemos managing partner Andrew M. Leinoff, the attorney representing his ex-wife, had also been retained by Del Rey during her own divorce several years prior. According to the appellate court's ruling, Becker only learned of the connection six months after he'd first filed for divorce in December 2018.

Becker filed a motion seeking Del Rey's disqualification from the case June 18, just one day after he discovered the judge's history with the Leinoff. As noted in the appellate opinion, Becker had concerns the judge "may have a bias in favor of the wife's counsel" and was consequently afraid he would not receive a fair trial.

Del Rey denied Becker's motion for disqualification July 3, deeming it legally insufficient. The Third DCA felt otherwise, writing Becker's fears were "objectively reasonable" in light of Leinoff's work on behalf of Del Rey, and the judge's subsequent failure to disclose her relationship with the lawyer.

Read the order:

"In a contested marital dissolution action, the trial judge should, at the first practicable instance, disclose the fact that one of the parties' attorneys personally represented the trial judge in the trial judge's own marital dissolution proceeding," the opinion said. "Even if the attorney-client relationship ended years before, and even if the trial judge genuinely believes no bias exists, reasonable people might consider such prior representation relevant to the issue of the trial judge's impartiality."

The Third DCA stressed the ruling did not suggest Del Rey's impartiality in the case was affected by her experience with Leinoff, noting the opinion did not outline "any blanket rule requiring that a trial judge recuse or disqualify himself or herself in all instances where one of the parties is represented by an attorney who previously represented the trial judge in a legal matter."

"It is, however, incumbent upon the trial court to disclose a prior attorney-client relationship with an attorney," the order said.

Leinoff did not return requests for comment by press time.

Fort Lauderdale appellate attorney and private practitioner Nancy Hass represented Becker's ex-wife before the Third DCA. She admitted to being unhappy with the ruling and characterized Del Rey as a "very ethical and very diligent" judge.

"I don't think there was any intention to deceive in any way," Hass said. She added that Leinoff's representation of Del Rey "was so remote in time" that neither the attorney nor the judge thought it'd pose an issue in Becker's divorce. "I work with Mr. Leinoff; he's top notch and extremely ethical, and I wouldn't work with him otherwise."

The attorney added, "If the judge had initially disclosed the representation … I'm not sure the appellate court would have granted the petition for the writ."

Hass said her client doesn't intend on filing a motion for rehearing.

Robin Bresky and Jeremy Dicker with the Boca Raton-based Law Offices of Robin Bresky served as Becker's appellate counsel. Bresky echoed Hass's sentiments, noting the appeals court primarily took umbrage with Del Rey's failure to inform all parties of her ties to Leinoff.

"That does happen where judges will say 'I was represented by so and so' … but everybody agrees, 'OK that's fine' and they go on," she said. "That didn't happen here and that's what the court took issue with." Bresky noted a Fourth DCA ruling cited in the opinion ⁠— Ballard v. Campbell, which held "The general rule is that disqualification is required if counsel for one of the parties is representing or has recently represented the judge," — had been litigated by her.

Bresky said the case exemplified role appellate courts play in the American judicial system.

"If somebody feels the judge didn't get [an issue] right in the trial courts they get to take it up to the appellate level," she said. "And one of them is the judge's refusal to disqualify himself or herself. … There is oversight on these types of things."

 

Related stories:

Miami Judge Loses Appeal Challenging Election of Marcia Del Rey

Did a Federal Judge Have to Drop a Case Because His Wife Works for Defense Firm Holland & Knight?

Florida Judge Disqualified from Case Because He Revealed Family Ties in a Similar Suit, Court Rules