FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2003-19
Date of Issue: November 10, 2003

JUDGE'S COMMUNICATION WITH GUARDIAN AD LITEM IN A POST DISSOLUTION CUSTODY ACTION INVOLVING A CLOSE PERSONAL FRIEND.

ISSUES

May a judge communicate with a guardian ad litem in a post dissolution of marriage action involving a close personal friend which is pending outside the judicial circuit of the inquiring judge?

ANSWER: Yes, if the communication involves factual issues.

FACTS

The inquiring judge is a close personal friend of a party involved in a post dissolution of marriage action involving child custody. The Guardian Ad Litem has been appointed to represent the interests of the child, and the party submitted the name of the judge to the Guardian as a reference. This action is pending in a judicial circuit different from that of the inquiring judge. The inquiring judge anticipates being contacted by the Guardian Ad Litem seeking information relevant to the pending custody proceedings.

DISCUSSION

Canon 2(B) of the Code of Judicial Conduct provides as follows:

... A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

This Committee has recently interpreted this Canon in two different factual situations with two consistent, but differing, results.

In JEAC Op. 03-04, this Committee advised the inquiring judge that it is proper for a judge to be interviewed by a lawyer about a matter in which the judge would be a fact witness before the judge is subpoenaed to give in-court testimony. The Committee overruled prior opinions which found that a judge could not be interviewed by a police officer's supervisor in an internal investigation and could not give a non-subpoenaed voluntary statement to authorities conducting a criminal investigation of another. In a well researched and comprehensive opinion, this Committee opined that although Canon 2(B) would not prohibit an interview regarding factual issues that may be relevant to a matter in litigation, the judge must nevertheless be subpoenaed for in-court testimony, whether as a character witness or as a fact witness.

In JEAC Op. 03-06, this Committee advised the inquiring judge that it was not ethically permissible for a judge to voluntarily appear on behalf of a party in a videotape to be used in personal injury settlement negotiations. The rationale of the Committee was that the videotape uses the prestige of the judicial office to advance the private interests of another in civil litigation. In that particular case, the inquiring judge was the only County Judge in a smaller county and was known to all participants in the case.

In the present inquiry, the judge's communication with the Guardian Ad Litem could be construed to be lending the prestige of the judge's office to advance the private interest of another in a custody dispute and communication with the Guardian Ad Litem would be impermissible under the rationale of JEAC Op. 03-06. On the other hand, the Guardian Ad Litem is a party to the civil litigation and pursuant to the rationale of JEAC Op. 03-04, the Guardian Ad Litem should have an opportunity to interview the judge regarding factual issues in the case and regarding testimony which may be presented at trial.

Therefore, resolution of the inquiry is fact specific. The inquiring judge is in the best position to determine whether the Guardian Ad Litem is seeking information regarding the facts of the case or information concerning character issues. Guardians quite often seek information on both issues. For this reason, the inquiring judge should encourage the Guardian not to reference his or her judicial position and to avoid the use of judicial office to promote the cause of one of the litigants. Furthermore, the judge should limit the inquiry to factual issues as opposed to character issues.

The fact that the custody case is outside the judge's judicial circuit is also a significant factor in resolving the inquiry. Because the case is pending in a judicial circuit outside the judge's circuit, the judge's perceived influence over the lawyers, the Guardian Ad Litem , and the presiding judge would be minimal.

If the Guardian seeks to obtain pretrial character testimony without a subpoena, the judge should respectfully decline. If the Guardian desires in-court testimony, whether factual or character, a subpoena is required. However, an interview with the Guardian to prepare for subpoenaed in-court testimony, or an interview regarding specific facts of a case, is permissible under the facts of this inquiry.

REFERENCES

Canon 2

Fla. JEAC Op. 03-04
Fla. JEAC Op. 03-06

_____________

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 Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Melanie May, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Jeffrey D. Swartz, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


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)