FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-07
Date of Issue: March 14, 2006

ISSUES

Whether it is proper for a judge to be interviewed by lawyers and their clients regarding the findings and conclusions made by an arbitration panel that the inquiring judge served upon prior to becoming a judge.

ANSWER: No.

FACTS

Prior to appointment as a judge, the inquiring judge served on a three person arbitration panel in a case that was referred to non-binding arbitration. After the panel’s decision was issued, the inquiring judge received a judicial appointment.

The attorneys who represented the litigants in the non-binding arbitration are now requesting a meeting with the arbitration panel to discuss the panel’s findings and conclusions. They seek clarification of the arbitrators’ decision. The litigants may also be present at this meeting. The arbitration panel is agreeable to this meeting.

The inquiring judge would not be paid to participate in the discussion, and the inquiring judge would not be making rulings or decisions as an arbitrator. The inquiring judge requests an opinion whether this activity would be in violation of the Code of Judicial Conduct.

DISCUSSION

If the inquiring judge participates in a discussion with the attorneys and the litigants about his thoughts and conclusions as to the decision rendered by the arbitration panel, the inquiring judge would be continuing in his role as an arbitrator in this matter. That is a violation of Canon 5F, Florida Code of Judicial Conduct, which prohibits a judge from acting as an arbitrator in a private capacity unless expressly authorized by law or court rule.

JEAC opinion 2005-19 is analogous to the inquiry in this matter. The Committee opined that after taking office a judge must not discuss a former client’s case with the clients’ new lawyers who accepted these cases when the inquiring judge assumed the bench. The Committee stated that discussion of pending cases with new counsel would constitute the practice of law; therefore, all further efforts by a judge on a former client’s behalf should cease.

Further, Canon 2B prohibits a judge from lending the prestige of judicial office to advance the private interests of others. The litigants and their attorneys may not view the inquiring judge’s thoughts and views as merely a clarification of the arbitration that already took place. The inquiring judge’s explanations, advice, statements, or questions during a discussion of the non-binding arbitration will be cloaked with the prestige of judicial office. The inquiring judge will be inserting his judicial office into the adversary process that the litigants in the arbitration matter are engaged in. This would be a violation of Canon 5A which states that 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.

REFERENCES

Fla. Code Jud. Conduct, Canons 2B, 5A, 5F.

Florida Judicial Ethics Advisory Committee Opinions: 2005-19.

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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, Ervin Gonzalez, Esquire, Marjorie Gadarian Graham, Esquire, Judge Michael Raiden, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III,  Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


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)