FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 2000-13
Date of Issue: June 22, 2000

MAY A TRIAL COURT LAW CLERK EMPLOYED BY A JUDICIAL CIRCUIT ACT AS AN ARBITRATOR IN STATUTORILY MANDATED, CONDITIONALLY BINDING ARBITRATION?

Answer: NO.
Facts

The inquiring judge has requested an opinion as to the propriety of trial court law clerks in the employ of his circuit participating and acting as an arbitrator in matters which may be filed before the court. The arbitration in question would be pursuant to a program established by the Better Business Bureau for compliance with §681.1095 Florida Statutes. That statute provides for mandatory, conditionally binding arbitration before a consumer can file a civil action for relief under the Motor Vehicle Sales Warranties Act. See §681.1095(4) Florida Statutes.

Discussion

Except in the cases of retired judges or judges subject to recall for service, Canon 5 of the Code of Judicial Conduct is clear as to the activities of judges outside their role as a judicial officer. It states in pertinent part:

F. Service as Arbitrator or Mediator. A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law or Court. (See Canon 5F Florida Code of Judicial Conduct) (emphasis added)
The definitions section of the preamble of the Code of Judicial Conduct defines "Judge" as:
"When used herein this term means Article V, Florida Constitution judges and, where applicable, those persons performing judicial functions under the direction or supervision of an Article V judge." (emphasis added)

The Committee has previously opined that a law clerk to a judge is not a person performing or assisting in judicial functions within the definition of "judge" as defined in the Code section cited above. Therefore the Code does apply directly to such persons. (Opinion 97-3)

However in the situation presented to the committee the arbitration is mandated as a condition precedent to the filing of a civil action. The law clerk acting as an arbitrator is in a position of deciding if liability exists and awarding damages where appropriate. In addition the provisions of the statute mandate that the decision of the arbitrator is enforceable in a court of law and admissible in evidence at trial. See §681.1095(9) Florida Statutes.

The Committee is not unmindful of its own statements in opinion 98-22 where it concluded that a part-time child support hearing officer could also serve as a part-time family mediator. In that opinion the committee likened a part-time hearing officer to a "retired judge subject to recall".

The section of the Code entitled "Application of the Code of Judicial Conduct" section B expressly excludes retired judges from Canon 5F. Several opinions of the Committee have dealt with and approved of "retired judges" acting as privately paid mediators and arbitrators. (See Opinions 99- 16, 94-48, 93-3, 91-24 and 95-33)

However there is a vast difference between a retired judicial officer and a full- time employee of a sitting and active Article V judge. It is clear that a sitting judge could not participate in rendering a decision which could affect possible litigation before such litigation was even instituted. If such conduct is not permitted of a sitting and active judicial officer then the judge may not permit the judge's staff to participate in such conduct.

Canon 3C(2) states:

"(2) A judge shall require staff, court officials, and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge..."

In Opinion 97-3, supra, the Committee addressed the role of law clerks when the inquiring judge wished to know if his law clerk could submit a character reference for a pre-sentence investigation report for someone the clerk knew. The Committee stated that although the Code of Judicial Conduct did not "expressly subject" the law clerk to its provisions it did "indirectly apply to law clerks." The Committee went on to explain that although responsibility for enforcement of Canon 7C(2) (now Canon 3C(2)) "is placed upon the judge, the Committee believes that a law clerk who willfully or negligently violates an applicable standard of fidelity or diligence is guilty of a transgression by acting in such a way as to thwart the judge's opportunity to exercise supervision."

To further aggravate this situation the law clerks in question are employed by the Circuit Court for the inquiring judge's circuit. By allowing the clerks in the employ of the court to serve in the function described herein would result in the disqualification of every judge in that circuit, thereby interfering in the orderly administration of justice. Specifically, each judge would be in a position of having his own employee testify either before that judge, or a jury, regarding the decisions that employee made as an arbitrator. See Rule 2.160(d)(2) Florida Rules of Judicial Administration

In short the committee is stating that the law clerks in question are not directly forbidden from acting in both capacities, however the chief judge of the circuit should not permit them to do so.

References

Florida Code of Judicial Conduct 5F, Preamble Definitions Section and Applications Section B.

Florida Judicial Ethics Advisory Committee Opinions: 99-16, 98-22, 97-3, 95-33, 94-48, 93-45, 93-3, 91-24 and 85-3.

§681.1095(4) and (9), Florida Statutes.

Rule 2.160(d)(2) Florida Rules of Judicial Administration.

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The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact The Honorable C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 130 West New York Avenue, DeLand, Florida, 32720.

Participating Members: Graham, Attorney at Law and Judges Cardonne, C. Kahn, L. Kahn, Levy, Silverman, Smith, Swartz, Thompson and Townsend.

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)