FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2006-03
Date of Issue: February 28, 2006
May a part-time child support enforcement hearing officer represent indigent prisoners who have filed post-conviction relief motions in the circuit in which the hearing officer presides?
The part-time child support enforcement hearing officer is also a private practitioner primarily representing criminal defendants. The hearing officer has been offered a contract by a local indigent services committee to represent indigent prisoners who have filed post-conviction relief motions under Florida Rules of Criminal Procedure 3.800 and 3.850. The hearing officer inquires whether it is permissible to represent the indigent prisoners and also act as a child support enforcement hearing officer.
In previous opinions, we have stated that the Application Section of the Code of Judicial Conduct applies to child support hearing officers. See Fla. JEAC Ops. 00-32, 98-12, 95-08. When asked to render an opinion as to whether a child support hearing officer may practice law in the same circuit and the same county in which the hearing officer presides, we have specifically concluded that a child support hearing officer may not practice family law, or handle any family-law related matters, in the circuit in which he or she presides. See Fla. JEAC Ops. 02-03, 00-32, 98-12, 95-08.
In JEAC Opinion 00-32, and in subsequent opinions, we have also concluded that since family law matters often overlap into the areas of probate, guardianship, and mental health, a child support hearing officer would be prohibited from practicing law involving those areas of law as well, in the same circuit in which he or she presides.
In JEAC Opinion 02-06, we were asked to render an opinion as to whether a child support hearing officer could practice law involving civil litigation matters which do not include family, criminal, probate, guardianship, or mental health issues, in the same circuit where the hearing officer hears child support cases. While the Committee was concerned that the expanding use of these part-time quasi-judicial officers increases the potential for ethical problems, we concluded that a child support hearing officer may continue to practice as a civil litigator where the matters being handled do not involve family, criminal, probate, guardianship, or mental health cases. The Committee, however, cautioned that the use of these quasi-judicial officers should be “carefully tailored” to minimize the possibility of ethical issues.
In the instant inquiry, the child support hearing officer regularly practices criminal defense law in the circuit in which the hearing officer presides. The hearing officer has been offered a contract with a local indigent services provider to represent indigent prisoners who have filed post-conviction relief motions pursuant to sections 3.800 and 3.850, Florida Rules of Criminal Procedure. The hearing officer inquires whether it is permissible to do so. We conclude that, based upon the manner in which child support enforcement is handled in the county where the hearing officer presides, the hearing officer may do so.
The focus has been, and still remains, on the ethical considerations and potential for conflicts of interest when a child support hearing enforcement officer, or other quasi-judicial officer, practices law in the circuit in which he or she presides. In JEAC Opinion 95-08 and 96-12, this Committee noted the potential for conflicts of interest which “could easily arise where a . . . hearing officer has to preside over cases litigated by attorneys that he or she may later be in an adversarial position with in other cases in other forums,” and the “chilling effect” this may have upon the attorneys.
The reasoning of JEAC Opinions 95-08 and 96-12 applies to the instant inquiry. Child support enforcement, in the county where the inquiring hearing officer presides, is prosecuted by privately contracted attorneys. In other jurisdictions, child support enforcement is prosecuted by the State Attorney’s Office, the Attorney General’s Office, or the State of Florida Department of Revenue. A lawyer practicing criminal law, either at the trial level or post-trial, handling post-conviction relief matters, occupies an adversarial position with the State Attorney’s Office and/or the Attorney General’s Office. However, as these offices are not involved in child support enforcement in the county where this hearing officer presides, we find no apparent conflict, nor any real potential for the hearing officer to be placed in an adversarial position with the same attorneys who practice in the hearing officer’s circuit.
The Committee concludes that the inquiring part-time child support hearing officer may handle post-conviction relief matters in the county where the hearing officer presides and elsewhere, and specifically limits this opinion to the county in which the hearing officer presides, based upon that county’s current procedures for handling child support enforcement.
Fla. JEAC Op.: 00-32; 95-08; 95-08; 98-12; 02-03; 02-06; 02-21
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.
Judge Robert Benton, Judge Karen Cole, Judge Michael Raiden, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, 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)