FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 00-32
Date of Issue: October 13, 2000

ISSUES

WHETHER A TITLE IV D JUDICIAL HEARING OFFICER AND/OR GENERAL MASTER MAY BE PERMITTED TO PRACTICE LAW IN NON-FAMILY LAW CASES IN THE JUDICIAL CIRCUIT WHERE HE/SHE HEARS TITLE IV D CHILD SUPPORT CASES, AND IF PERMITTED TO HANDLE SUCH CASES, ARE THERE ANY RESTRICTIONS OR LIMITATIONS WITH REGARD TO THE HANDLING OF SUCH CASES.

ANSWER: No.

WHETHER A TRAFFIC HEARING OFFICER MAY BE PERMITTED TO PRACTICE LAW IN CASES OTHER THAN TRAFFIC CASES IN THE SAME CIRCUIT IN WHICH HE/SHE SITS AS A TRAFFIC HEARING OFFICER, AND WHETHER THERE ARE ANY RESTRICTIONS IN THE HANDLING OF SUCH CASES.

ANSWER: No.

WHETHER AN ASSOCIATE IN THE SAME LAW FIRM AS A PART-TIME TITLE IV D JUDICIAL HEARING OFFICER MAY BE PERMITTED TO PRACTICE FAMILY LAW IN THE SAME CIRCUIT AS THE TITLE IV D JUDICIAL HEARING OFFICER IN HIS/HER FIRM SO LONG AS THE ASSOCIATE DOES NOT HANDLE TITLE IV D CASES OR OTHERWISE APPEAR BEFORE THE TITLE IV D JUDICIAL HEARING OFFICER IN HIS/HER FIRM.

ANSWER: No.

WHAT CONSTITUTES, IN THE OPINION OF THE COMMITTEE, A "COURT" AND "FORUM" IN WHICH A TITLE IV D JUDICIAL HEARING OFFICER AND/OR TRAFFIC HEARING OFFICER, MAY NOT PRACTICE LAW, AS REFERRED TO IN OPINIONS 95-8, 96-12, 98-12, 98-22, AND 99-01 RENDERED BY THE COMMITTEE?

ANSWER: The Committee is unable to answer this part of the Inquiry.

FACTS

The inquiring Title IV D judicial hearing officer is employed on a contractual hourly basis, hearing only Title IV D child support cases filed and prosecuted by the Florida Department of Revenue. The hearing officer wishes to handle cases other than family law cases in the circuit where he/she hears cases, including cases in the areas of probate, guardianship, and mental health. The hearing officer is concerned that the handling of such cases would constitute practice of law in a forum or court in which he/she presides. If permitted to do so, the hearing officer would like to know whether there are any prohibitions or restrictions on handling such cases.

The inquiring hearing officer also is considering requesting that he/she be appointed as a traffic hearing officer when he/she is not hearing Title IV D child support cases. As such, the hearing officer would not be handling any family law or traffic cases, but would like to handle other types of cases as described above. The hearing officer is concerned that the handling of such cases would constitute practice of law in a forum or court in which he/she presides. If permitted to do so, the hearing officer would like to know whether there are any prohibitions or restrictions on handling such cases.

DISCUSSION

Issue 1

In Opinion 95-08, this Committee concluded that part-time child support hearing officers are subject to the Code of Judicial Conduct. See Application of the Code of Judicial Conduct. This Committee also concluded that these hearing officers are prohibited from practicing family law in the same circuit in which they preside. See also Fla. JEAC Op. 96-12 (part-time child support hearing officer is prohibited from practicing family law in same circuit, even though hearing officer would not appear before another hearing officer, general master circuit judge); Fla. JEAC Op. 98-12 (part-time child support hearing officer, who performs his/her duties in five counties of the circuit, is prohibited from practicing family law in the sixth county of circuit); cf. Fla. JEAC Op. 99-01 (general master may volunteer to appear on behalf of the Department of Children and Families in adoption cases because volunteering in adoption cases after the parental rights have been terminated is not an adversarial role).

In the instant inquiry, the child support hearing officer wishes to handle, in the his/her same circuit, probate, guardianship, and mental health cases. However, this Committee notes that attorneys who practice in the area of family law may often overlap into the areas of probate, guardianship, and mental health cases. Thus, it appears that the easily-arising conflicts of interest, noted by this Committee in JEAC Opinion 95-08, could also occur in the instant factual situation. Compare Fla. JEAC Op. 98-22 (part-time child support hearing officer may also serve as a part-time mediator [neutral role] as long as hearing officer carefully avoids conflict by not mediating cases which would come before the hearing officer or vice versa). Further, although handling these other types of cases, the hearing officer may also appear before the same circuit judges who directly review the officer's findings and recommendations in the child support cases. Therefore, this Committee finds that the part-time child support hearing officer should not practice probate, guardianship, and mental health cases within his/her same circuit.

Issue 2

In JEAC Opinion 92-48, this Committee concluded that traffic hearing officers are prohibited from practicing law in any county court in which he/she presides. See also Fla. R. Traf. Ct. 6.630 (i) ("All traffic hearing officers shall be subject to the Code of Judicial Conduct ? traffic hearing officers shall be prohibited from representing clients or practicing before any official in any county court traffic matter or from representing any client appealing any county court traffic decision."); Application of the Code of Judicial Conduct; Fla. JEAC Op. 97-23 (traffic hearing officer may not handle county court traffic matters in any court); Fla. JEAC Op. 93-35.

The Committee is aware that a proposed amendment to Rule 6.630, Florida Rules of Traffic Court, is pending before the Supreme Court. The effect of this amendment would be to overrule JEAC Opinion 97-23. This Committee has been charged by the Florida Supreme Court with rendering ethics advisory opinions and periodically proposing amendments to the Florida Code of Judicial Conduct. Accordingly, this Committee strongly questions whether a judicial ethics standard should be established by a rules committee of The Florida Bar. It is the view of this Committee that the proposed rule amendment could open the conduct of hearing officers to questionable activities and damage public perception of impartiality in our hearing officer system. Accordingly, this Committee will follow Opinion 97-23.

In the instant inquiry, the child support hearing officer also wishes to be appointed as a traffic hearing officer when he/she is not hearing Title IV D child support cases, as well as handle probate, guardianship, and mental health cases. The same analysis under Issue 1 applies to this issue, however, the potential ethical considerations are broadened by the hearing officer's requested dual role in two different courts. More attorneys would come before the hearing officer in his/her dual role which increases the potential of the hearing officer being placed in an adversarial position with even more of these same attorneys who practice in the same circuit. See also Fla. JEAC Op. 95-23 ("traffic magistrates are used extensively in all traffic cases," thus, it would look unfair for a magistrate to preside in one courtroom then to assume a prosecutorial role in another). Further, the hearing officer in his/her dual role, would likely appear before more of the same circuit judges who directly review the hearing officer's findings and recommendations in the child support cases and the traffic cases.

In addition, this Committee cannot address whether under the terms of the hearing officer's employment with his/her circuit, the hearing officer could take time to handle these cases, especially in light of the requested dual role. See Canon 3A ("[t]he judicial duties of a judge take precedence over all the judge's other activities."); Application of the Code of Judicial Conduct ("magistrate, ...child support hearing officer, ...shall, while performing judicial functions, conform with Canons 1, 2A, and ..."). Thus, this Committee finds that the part-time child support hearing officer/part-time traffic hearing officer should not practice probate, guardianship, and mental health cases within his/her same circuit.

Issue 3

Since a part-time child support hearing officer is prohibited from practicing family law in the same circuit in which he/she presides, an associate in the hearing officer's law firm would also be prohibited from such practice. See Fla. JEAC Op. 98-23 (an associate of traffic hearing officer cannot represent clients in traffic court); Fla. JEAC Op. 90-26 ("any law practice proscribed to [hearing officer] is proscribed to [the] partner"); see also Fla. JEAC Op. 95-08; 96-12; and 98-12. Therefore, the hearing officer's associate is also prohibited from practicing family law in the same circuit, even though the associate does not handle Title IV D cases or otherwise appear before the Title IV D hearing officer. See Fla. JEAC Op. 96-12 ("the reasoning of Opinion 95-8 applies to your inquiry, even though it is posed in terms of handling cases that would not require an appearance before the General Master, Hearing Officer or Circuit Judge. The conflicts of interest discussed in Opinion 95-8 could still arise.").

Issue 4

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. Issue 4 does not describe specific conduct the inquiring hearing officer is contemplating. Therefore, the inquiry is essentially a legal question, which this Committee cannot answer.

REFERENCES

Florida Rule of Traffic Court 6.630(i).

Florida Code of Judicial Conduct, Canon 3A; and Application of the Code of Judicial Conduct.

Florida Judicial Ethics Advisory Committee Opinions: 90-26; 92-48; 93-35; 95-08; 95-23; 96-12; 97-23; 98-12; 98-22; 98-23; and 99-01.

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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 Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850

Participating Members: Judge Charles J. Kahn, Jr.
Judge Lisa D. Kahn
Judge Phyllis D. Kotey
Judge David Levy
Judge Scott J. Silverman
Judge C. Mcferrin Smith, III
Judge Richard R. Townsend
Marjorie Gadarian Graham

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)