Legal ethics experts Jan Jacobowitz, left, professor of Law at the University of Miami School of Law and John G. Browning, right, of Passman & Jones weigh in on U.S. District Judge Mark E. Walker's decision to recuse himself from a felons voting rights case. Courtesy photos.

U.S. District Chief Judge Mark E. Walker in the Northern District of Florida recused himself from a case that challenged part of an amendment giving voting rights to convicted felons.

He did it because one of the defense attorneys works at Holland & Knight, a Big Law firm where Walker's wife, Karen D. Walker, is executive partner in the Tallahassee office.

But did he have to?

Not necessarily, according to legal ethics experts, but the optics wouldn't have been great if he had remained.

“The judge probably made a wise decision to move the case forward,” said Jan Jacobowitz, professor at the University of Miami School of Law. “It was going to be a battle, probably.”

Aside from overseeing their individual cases, judges also have an obligation to avoid any appearance of wrongdoing—something this case might have reeked of if he had stayed put.

“Even the appearance of impropriety is impermissible, and that's a very tough, vague kind of standard,” Jacobowitz said. 

The litigation stems from a group of plaintiffs' June 15 lawsuit against Florida, with the backing of civil rights groups like the American Civil Liberties Union and the National Association for the Advancement of Colored People. The complaint argued against a Florida law that requires felons to pay all financial obligations related to their crimes, before they can regain the right vote.

George Meros. Courtesy photo.

The judge stepped down after George Meros of Holland & Knight's Tallahassee office Tuesday signed up to represent two defendants, Secretary of State Laurel Lee and Broward County Supervisor of Elections Peter Antonacci.

Walker's order hinted that the Holland & Knight attorney might have been hired purposely to get him off the case.

“Although the conduct at issue is deeply troubling, I am relieved of those concerns by confidence in my colleagues on this court to preside over the remainder of this case and judge it fairly and wisely,” Walker wrote.

The plaintiffs also filed the complaint in Gainesville, which critics say might have been done in an effort to ensure Walker got the case as he was the only federal judge accepting cases in that circuit.

But Florida's State Department suggested its actions reflected no motive beyond retaining the best attorneys to handle its defense.

“The department had to retain additional counsel to timely and competently defend the 19 cases in which the secretary of state is a defendant,” spokesperson Sarah Revell wrote in a statement. “The department made a decision to expand (its) legal team based upon the nature and scope of our existing litigation. Holland and Knight is one of the most respected and largest firms in the State of Florida.”

'Very sticky'

Judge shopping is “an age-old controversy” that's all about nuance, the way Jacobowitz sees it. Because although it's curious that the Holland & Knight lawyer wasn't hired from the outset, there's no reason why he shouldn't have been retained either, since he specializes in compliance and government affairs.

While judge shopping is ”not palatable,” it's not unprecedented, according to Jacobowitz.

“Generally, people should be randomly assigned a judge, and that's how our system is set up to have an independent judiciary,” Jacobowitz said. “But the reality is that it's human beings on both sides of the case and sitting on the bench, so these kind of things happen. … The whole thing is very sticky.”

If Walker hadn't stepped away, the defendants would have filed a motion to disqualify him, asking him to decide whether he could be fair and impartial, observers said.

Brian L. Tannebaum. Courtesy photo.

There was no other option for Walker, according to Miami attorney Brian L. Tannebaum, special counsel to Bast Amron, who focuses on ethics and white-collar defense.

“What happens in this case happens a lot. Lawyers try to figure out a way to get to another judge, and this is how they do it,” Tannebaum said.

Without knowing for sure whether judge shopping occurred in this case, Tannebaum said he'd “bet a lot of money” there was a discussion about the fact that Walker had ruled against the state in previous cases relating to elections.

“Because you can't go in front of Judge Walker and say, 'Well, you've ruled against our position in other cases, so we'd like another judge,' there are other ways to do it,” Tannebaum said. “And if lawyers are being honest with themselves, they're very aware that this is what goes on in the profession.”

No attorney has ever been disciplined for doing that, according to Tannebaum, and he said that's likely because no one's ever really admitted to it or probed further.

Political gamesmanship

This ”legal and political gamesmanship” is nothing new to John G. Browning, who practices at Passman & Jones in Texas, and has written books and scholarly articles on legal ethics.

In Browning's state, many legislators and senators also happen to be lawyers — and some of them take advantage of a rule that allows automatic continuances if one of the lawyers involved is a legislator, since they might suddenly be busy or called away on state business.

“Some litigants have hired legislators in the past, simply for purposes of getting a case delayed,” Browning said. “That's one practice that's been lamented, and it's an example of this kind of legal political gamesmanship that can go on.”

Browning said Walker was duty-bound to recuse himself, as the U.S. Federal Courts issued a 2009 advisory opinion encouraging judges to walk away from cases connected to a spouse's firm.

As for state courts, a 2007 Florida advisory opinion said that judges should be disqualified from presiding over cases when relatives are employed by a firm handling it. States like New York, Michigan, California tend to hold similar views, according to Browning. While other states, including Ohio, Illinois and Texas, tend to rule on a case-by-case basis.

Some look at the degree of financial interest.

If the case presented the possibility of a large contingency fee, and the judge's spouse were an equity partner who literally had a stake in the firm's success, that would be cause for the judge to step down, Browning said. But different circumstances might not have to result in disqualification.

“For example, if I had a relative who was low on the totem pole in a 300, 400-lawyer law firm and was never going to come into any remote contact with this case, that might be something to consider,” Browning said.

If a community is particularly small, it might be impractical for a judge to step down, or the attorney in question is a junior associate for a national law firm working at an office in a different state, it might not be necessary. Then again, if the spouse or relative is still getting an income from the firm, that could be enough to fuel concern among the public.

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Read more: No Rehearing for Cole Scott Clients in Cases Requesting Judge Miller's Recusal

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The issue made news recently in a very different case.

Defense attorneys fighting the government's 'Varsity Blues' case against parents accused of using money to get their children admitted to top universities have accused prosecutors of judge shopping, alleging they manipulated the charging process to ensure all the cases would fall before one judge.

The idea of attorneys purposely seeking to create conflict for jurists arose as the U.S. Administrative Office of the U.S. Courts in Washington, D.C., considered a change to Rule 29(a). The rule allows appellate courts to strike amicus briefs that would cause conflict for judges who are on, or could potentially sit, on the appellate panel.

And then in April, the U.S. Court of Appeals for the Fifth Circuit rejected Gibson, Dunn & Crutcher's amicus brief  in a Texas Affordable Care Act case because one of the panel judges was a Gibson Dunn partner.

Whatever happens next, the felons voting lawsuit in Florida is too politically charged to reach a quick or simple conclusion, the way Jacobowitz sees it.

“Whoever loses this is going to appeal,” she said. “It's a constitutional issue. There are so many ex-felons in our state that no one knows for sure, but statistically, it appears that if a good percentage of them voted it could swing the state from red to blue. Certainly, at least into a purple zone. So there's a perceived tremendous amount at stake here.”

The plaintiffs attorneys declined to comment on the case, while Meros and his fellow defense lawyers did not respond by deadline.

The case has been reassigned to U.S. District Judge Robert Hinkle.

Read the order:

 

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