FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-12
Date of Issue: May 16, 2006

ISSUES

Whether it is proper for a judge who, while an assistant state attorney, prosecuted a murder case, to meet with the current state attorney to discuss claims made by the defendant in a motion to vacate judgment and sentence pursuant to Rule 3.850, Florida Rules of Criminal Procedure.

ANSWER: Yes.

FACTS

While an assistant state attorney, the inquiring judge prosecuted a first-degree murder case which resulted in the conviction and sentencing of the defendant. The defendant has now filed a Rule 3.850 motion, alleging ineffective assistance of counsel, and seeking to vacate his judgment and sentence. The current state attorney has asked the inquiring judge to meet in order to discuss the contentions made by the defendant in his motion.

DISCUSSION

Canon 2B of the Code of Judicial Conduct states:

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.

In Opinion 03-04, this Committee opined that a judge who had been  subpoenaed by a former client’s current lawyer to testify in a civil case about the reasonableness of an offer of settlement at the time it was rejected and about the reasonableness of attorney’ s fees in the case could properly review documents provided by the current attorney in advance of the hearing, and could properly be interviewed “by either or both sides in a civil case regarding issues that the Judge has firsthand knowledge of that may be relevant to a matter in litigation or that may potentially be in litigation.” The Committee noted, however, that the judge was not ethically obligated to permit such interviews. 

The contemplated meeting with an assistant state attorney would not constitute the practice of law by the judge so long as the judge scrupulously avoids advising or assisting in the conduct of the post-conviction litigation, and limits the discussion with the state attorney to factual matters.  Fla. Code Jud. Conduct, Canon 5G; Fla. JEAC Op. 05-19 (judge may not discuss former clients’ pending cases with the attorneys currently handling those cases).

In the present case, the inquiring judge may meet with the state attorney, or the defendant, or both, regarding factual issues concerning which the Judge has firsthand knowledge and which may be relevant to the pending 3.850 litigation. Such a meeting(s) would not violate any other portion of the Canons. The judge, however, is not required to consent to being interviewed at all.

REFERENCES

Canon 2B, Code of Judicial Conduct

Fla. Code Jud. Conduct, Canon 5G

Fla. JEAC Op. 05-19; 03-04

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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)