FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2002-03
Date of Issue: February 8, 2002

ISSUES

MAY PRO BONO PART-TIME FAMILY LAW HEARING OFFICERS CONTINUE TO PRACTICE LAW IN THE SAME CIRCUIT IN WHICH THEY PRESIDE AS HEARING OFFICERS OVER CHILD SUPPORT CASES?

ANSWER: Yes, subject to certain conditions.

FACTS

The inquiring judge is the administrative judge for the Family Law Division of a circuit court. Among the programs with which this administrative judge is charged, is oversight of a Judicial Hearing Officer program. The hearing officers are appointed by the chief judge pursuant to Rule 12.490, Florida Family Law Rules of Procedure. The inquiring judge suggests that this program differs in several respects from other programs that utilize part-time hearing officers.

Hearing officers in the circuit in question are not compensated by the court for their service in any manner. Also, the program is operated at night so that litigants who have day jobs may come to court at more convenient times.

In addition, rather than relying upon family law practice, the program in question "instead utilizes private practitioners who do not practice in family court, [as well as] municipal and county attorneys, judicial staff attorneys, assistant state attorneys and assistant public defenders, and other government lawyers who . . . are otherwise restricted in the kinds of pro bono services that they can render to the legal profession."* Finally, the lawyers who serve are called upon only once or twice a month.

DISCUSSION

The inquiring judge appears to have read Florida JEAC Opinion 00-32 as a "blanket proscription . . . placed upon judicial hearing officers regarding the practice of law in any cases in the circuit where the hearing officer presides. . . ." This is an incorrect reading of Opinion 00-32. In that case, the Committee did phrase the inquiry as whether a hearing officer "may be permitted to practice law in non-family law cases in the judicial circuit where he/she hears" child support cases. Fla. JEAC Op. 00-32. The inquiry, however, specifically concerned the handling of cases in the areas of probate, guardianship, and mental health. This Committee noted that "attorneys who practice in the area of family law may often overlap into the areas of probate, guardianship, and mental health cases." Id. The Committee thus concluded, in its response to the particular question before it, that "part-time child support hearing officers should not practice probate, guardianship, and mental health cases within [the] same circuit. Id.

The rationale of Opinion 00-32 does not thwart the Judicial Hearing Officer program described in the present inquiry. Here, a pro bono night-time hearing officer system has been set up, and the county has recruited prospective hearing officers from among private practitioners who do not practice in family court and also from the ranks of government attorneys who might otherwise have difficulty fulfilling their pro bono obligations. Assuming that such volunteer pro bono hearing officers would be bound by Opinion 00-32, this opinion would not prevent such volunteer hearing officers from practicing law within their circuits.

Opinion 00-32 relied specifically upon three prior opinions of this Committee. See Fla. JEAC Ops. 98-12, 96-12, and 95-08. Each of these opinions discussed the problems inherent when part-time hearing officers, officially employed in the circuit, continue to practice law within the circuit. With the exception of Opinion 95-08, the previous opinions address the problem of part-time hearing officers continuing to practice family law within their circuit. The Committee thus takes this opportunity to clarify its view that the ethical prohibition is as the Committee has set out in Opinions 00-32, 98-12, and 96-12 and applies to practice in family law and related areas. Accordingly, the attorneys now participating in the pro bono program described by the inquiring judge may practice law within the same circuit, subject to the prohibition against handling family law cases, and the further prohibition against handling cases that the Committee has previously found to be so overlapping with family law that conflicts of interest would arise with regularity.

REFERENCES

Rule 12.490, Florida Family Law Rules of Procedure

Florida Judicial Ethics Advisory Committee Opinions: 00-32, 98-12, 96-12, 95-08.

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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 Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th St #712, Miami, FL 33125

Participating Members: Judges Cardonne, Davidson, Kahn, Kotey, Levy, Silverman, Swartz, Thompson and Townsend; and attorney 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)

1 Quoted material not otherwise attributed is taken from the inquiry letter