1. Relationships between the Judge and the
attorneys, litigants or subject matter of the case,
i.e. financial benefit to the Judge or
representation of Judge by attorney.
2. Actions taken by the Judge, i.e. ex-parte
communication or pre-judgment of an issue.
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Disqualification of trial judges is governed by
Florida Statutes, Florida Rules of Judicial
Administration, and the Florida Judicial Conduct
Code.
Canon 3E of the Florida Judicial Conduct Code
applies to all judges, but there are no statutory or
mandatory procedures in Florida that apply to
disqualification of appellate judges .
A disqualification made by a Florida Supreme
Court justice is not reviewable.
In re Estate of Carlton, 378 So. 2d 1212 (Fla. 1979).
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A judge shall disqualify himself or herself in a
proceeding in which the judge’s impartiality might
reasonably be questioned, i.e.:
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Judge has personal bias or prejudice concerning party or
party’s lawyer.
Judge served as a lawyer or lower court judge in the matter in
controversy.
Judge has personal knowledge of disputed evidentiary facts.
Judge has economic interest in subject matter.
A judge shall keep informed about the judge’s personal
and fiduciary economic interests, and make a
reasonable effort to keep informed about the economic
interests of the judge’s spouse and minor children
residing in the judge’s household.

If disqualification under 3E is not based on
personal bias or prejudice concerning a party,
the Judge may continue to participate if the
parties and lawyers agree that the Judge
should not be disqualified.
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This agreement shall be incorporated in the record of
the proceeding.
Any party, including the state, may move
to disqualify the trial judge assigned to the
case on grounds provided by rule, by
statute, or by the Code of Judicial Conduct.
Fla. R. Jud. Admin. 2.330.

A motion to disqualify must show:
1. Party fears an unfair trial or hearing due to the
Judge’s prejudice or bias.
2. The Judge or Judge’s relation by consanguinity
or affinity within the third degree is a party or has
an interest in the result.
3. The Judge is related to an attorney in the cause.
4. The Judge is a material witness for or against one
of the parties in the cause.
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Judge is a party or has some interest in the result of the
cause. Fla. Stat. §38.02.
Judge is related to an attorney in the cause by
consanguinity or affinity within the third degree. Id.
Judge is a material witness for or against one of the
parties to the cause. Id.
Some person related to the Judge by consanguinity or
affinity within the third degree is a party or has some
interest in the result of the cause. Id.
Judge is prejudiced or partial in the case. Fla. Stat. § 38.10.
In determining whether a motion to disqualify a
judge is legally sufficient, courts look to see
whether the facts alleged would place a reasonably
prudent person in fear of not receiving a fair and
impartial trial.
Fla. R. Jud. Admin. 2.330; Barnhill v. State, 834 So. 2d
836 (Fla. 2002); Chamberlain v. State, 881 So.2d 1087
(Fla. 2004).
INITIAL MOTION TO DISQUALIFY
BASED ON ALLEGATIONS OF
PREJUDICE OR PARTIALITY OF JUDGE
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Judge shall determine
legal sufficiency of the
motion and shall not pass
on the truth of the facts
alleged.
Judge must grant
disqualification if motion
is legally sufficient and
must deny
disqualification if motion
is legally insufficient.
SUCCESSIVE MOTION TO DISQUALIFY
BASED ON ALLEGATIONS OF
PREJUDICE OR BIAS OF JUDGE
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If a judge has been
previously disqualified
based on alleged prejudice
or partiality, a successor
judge shall not be
disqualified based on a
successive motion by the
same party unless the
successor judge rules that
he or she is in fact not fair
or impartial in the case.
INITIAL MOTION TO
DISQUALIFY BASED ON
ALLEGATIONS OF
PREJUDICE OR PARTIALITY
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Allegation of prejudice
or partiality is enough.
Fla. Stat. § 38.10.
SUCCESSIVE MOTION TO
DISQUALIFY BASED ON
ALLEGATIONS OF PREJUDICE
OR PARTIALITY
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Successor judge only
disqualified if judge
admits and holds that it
is a fact that he or she
does not stand fair and
impartial between the
parties.
Fla. Stat. § 38.10.
1.
Judge previously represented (as a practicing
attorney) a litigant ?
- Not disqualified, provided there is no recent
confidential relationship and the extent of prior
contact was not meaningful.
Milani v. Palm Beach County, 973 So. 2d 1222 (Fla. 4th DCA 2008).
2.
Judge is a referee in an attorney’s pending disciplinary
action?
- Not disqualified, unless it can be shown that the
Judge has a personal bias or prejudice concerning a
party or a party’s lawyer.
Metsch v. Traeger, 834 so. 2d 877 (Fla. 3d DCA 2003).
3.
Judge previously presided over parties’ Dissolution of Marriage and is presiding over
Post-Judgment partition action brought by Former Wife regarding property in existence
at time of Final Judgment? Former Wife’s Motion for Disqualification alleges Judge is
material witness in the cause based on his memory of dissolution proceedings.
- Not disqualified. A trial judge does not become material witness in a cause merely
because he has knowledge of what occurred before him in a prior proceeding. Denial of
Former Wife’s Motion for Disqualification in her action for partition on ground that
Judge was allegedly proceeding upon his memory of testimony in divorce case prior to
final judgment and was therefore witness in the cause was not error.
Wilisch v. Wilisch, 335 So.2d 861 (Fla. 3d DCA 1976).
4.
Judge holds in camera interviews with minor children in contested dissolution action to
determine temporary time-sharing. Neither party desired a court reporter to transcribe
interviews. Mother later discovers that Judge provided minor children with her e-mail
address and minor children have e-mailed Judge regarding complains about Mother. The
minor children’s communications were made available to both parties and were made a
part of the record by the Mother. Mother files Motion for Disqualification based on
impartiality of Judge.
- Disqualified. The surreptitious nature of the communications together with the
conspiratorial tone used by the children in those communications would prompt a
reasonably prudent person to fear that the judge was no longer neutral because she had
entered into a confidential relationship with the children, both of whom expressed very
negative feelings toward the Mother.
Frengel v. Frengel, 880 So. 2d 763 (Fla. 2d DCA 2004).
5.
Attorney joins as co-counsel in pending criminal case. Judge previously entered
standing order recusing himself from all cases with Attorney based on known
conflict. Criminal Defendants petition to disqualify Judge.
- Not disqualified. The alleged conflict was known by the new attorney and
created by a decision to retain a new lawyer late in the proceeding.
Sume v. State, 773 So. 2d 600 (Fla. 1st DCA 2000).
6.
Judge residing over contested time-sharing matter informs parties that he called
minor children’s school to verify whether Mother listed Father as emergency
contact. Based on this communication, Judge finds Mother’s testimony noncredible and modifies time-sharing.
- Disqualified. Judge’s independent investigation denied Mother’s due
process rights and required disqualification.
Albert v. Rogers, 57 So. 3d 233 (Fla. 4th DCA 2011).
7.
Judge residing over a contested dissolution case involving a request for
permanent alimony called Wife an “alimony drone” and a “woman scorned”.
- Disqualified. Judge’s words and actions reasonably gave Wife legitimate
fear that Wife would not receive fair trial in dissolution action.
Valdes-Fauli v. Valdes- Fauli, 903 So. 2d 214 (Fla. 3d DCA 2005).