FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-19
Date of Issue: December 22, 2005

ISSUES

May a judge discuss former clients’ pending cases with the judge’s former law partner, who accepted many of these cases as the judge’s law practice was closed before taking office?

May a judge discuss a former client’s case with the client’s new lawyer who is not a former partner of the judge?

ANSWER: No, to both questions. The judge may not discuss former clients’ cases with their new lawyers, except as to matters which would not constitute the practice of law.

FACTS

The inquiring judge was recently appointed to the bench and has taken all necessary steps to close the former law practice and insure that all clients are either represented, in many cases by the judge’s former partner, or have proper instructions for obtaining new counsel. The judge understands that judges are prohibited from practicing law or giving legal advice. However, the judge anticipates that some lawyers may call to inquire about some aspect of a case which the judge had previously handled and which they are now undertaking.

DISCUSSION

Canon 5 of the Code of Judicial Conduct governs this inquiry. Its introduction states, “A Judge Shall Regulate Extrajudicial Activities To Minimize The Risk Of Conflict With Judicial Activities.”

Canons 5A, 5G, and 5E read, in pertinent part:

5A. A judge shall conduct all extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties

5E. A judge shall not serve as executor, administrator, or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge’s family; and then only if the service will not interfere with the proper performance of judicial duties

5G. A judge shall not practice law; but a judge may act pro se and may, without compensation, give legal advice to and draft or review legal documents for a member of the judge’s family

This committee has previously recognized the importance of newly selected judges (appointed or elected) having the ability to protect the interests of their clients, while at the same time preserving the ethical integrity of the new judge’s conduct. See, JEAC Op. 2005-08.

The Committee recognizes that many new judges leave an active law practice to take the bench. It would, therefore, be impractical for the Code to prohibit the newly selected judge from handling any cases between the date of the selection and the date of the judge's taking office.

In JEAC Op. 74-13, the inquiring attorney/judge-elect wished to know whether he could continue to act as an Assistant State Attorney in trials of cases in the circuit court after his election as circuit judge. This Committee responded, finding "no impropriety in your continuing as assistant state attorney trying cases in the circuit court until you assume the office of circuit judge." The Committee concluded that no ethical prohibition exists that would prohibit a newly elected judge from continuing to handle cases during the period between the election and taking office. The Committee noted, however, that a newly elected judge should devote substantial attention to winding up the law practice, with due regard for the rights and expectations of existing clients.

In interpreting Canons 5E (fiduciary activities) and 5G (practice of law), this Committee recently concluded that, after assuming the bench, a new judge should close a trust (IOTA) account that existed from the judge’s practice, even though it was simply being used for the distribution of funds when received. JEAC Op. 2005-08.

These Canons and prior JEAC opinions all appear to give the newly selected judge substantial leeway in closing a law practice. However, any discussion of pending cases with new counsel that would constitute the practice of law should take place during the process of closing the law practice, not after the judge takes office. After taking office, all further efforts on a former client’s behalf should cease.

A minority of this Committee is concerned that avoiding “any discussion of pending cases” is too harsh a standard, that there may be reasons for the new judge to discuss such a case with new counsel that would not constitute practicing law for the former client (such as a discussion of fees at the conclusion of the case). While this may be correct, the instant Inquiry does not provide the Committee with any description of possible or proposed discussions that would be for reasons other than furthering the client’s interests. Therefore, the Committee can only suggest that the safe and ethical practice would be for the judge-select to concentrate, during the closing of the law practice, on providing subsequent counsel with everything necessary to avoid the need for later discussions.

The practice of law, prohibited by Canon 5G, is not limited to appearing in court, or advising and assisting in the conduct of litigation, but it embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. Black’s Law Dictionary (4th ed. 1968). See also Florida Bar v. Brumbaugh, 355 So. 2d 1186, Fla. 1978); State of Florida ex rel. Florida Bar v. Sperry, 140 So. 2d 587 (Fla. 1962).

The inquiring judge should avoid any discussion of pending cases with new counsel that would constitute the practice of law.

REFERENCES

Florida Bar v. Brumbaugh, 355 So. 2d 1186, Fla. 1978); State of Florida ex rel. Florida Bar v. Sperry, 140 So. 2d 587 (Fla. 1962).

Florida Code of Judicial Conduct: Canons 5A, 5E, and 5G.

Florida Judicial Ethics Advisory Committee Opinions: 74-13, and 2005-08.

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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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Marjorie Gadarian Graham, Esq., Chair, Judicial Ethics Advisory Committee, 11211 Prosperity Farms Road, Oakpark, Suite D129, Palm Beach Gardens, Florida 33410.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


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