FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2009-03
Date of Issue: February 20, 2009
May a judicial circuit use the volunteer services of retired attorneys, who no longer practice law, to perform the functions of judicial staff attorneys?
Due to budgetary limitations, the Inquiring Judge’s circuit cannot fill the positions of staff attorneys who have left their employment. Because of the loss of staff attorneys and an increased caseload, the remaining staff attorneys are experiencing an increase in workload. The circuit is considering using the services of retired attorneys to perform the functions of staff attorneys. These attorneys are retired in Florida and other jurisdictions and no longer practice law in any fashion. They would not be compensated for their services. The Inquiring Judge asks if it would be permissible for his circuit to use volunteer retired attorneys as staff attorneys.
Although the Code of Judicial Conduct does not directly apply to judicial assistants, staff attorneys, and other court officials, it indirectly applies to them. Canon 3C(2) of the Code of Judicial Conduct mandates that a judge “shall require staff, court officials and others subject to the judge’s direction and control to observe the same standards of fidelity and diligence that apply to the judge.” Therefore, it is incumbent on judges to diligently monitor actions of staff that might bring into question the independence of the judiciary and the appearance of impropriety. See Fla. Code Jud. Conduct, Canons 1 and 2.
Consequently, salaried judicial staff attorneys have ethical restrictions on their activities. Using the volunteer services of retired attorneys would be permissible as long as the Inquiring Judge’s circuit required that these volunteers have the same ethical restrictions on their activities as paid staff attorneys.
It is important to note that the volunteers the Inquiring Judge’s circuit intends to utilize are retired attorneys who are not practicing law. As a result, no conflict can occur from a volunteer staff attorney appearing before a judge that the volunteer was also working for.
As long as the volunteer retired attorneys are willing to observe the same ethical limitations placed upon their activities as salaried judicial staff attorneys, then the Inquiring Judge’s circuit may use these volunteer attorneys as judicial staff attorneys.
This opinion does not address the substantive law pertaining to employment of volunteers by the judiciary. See §110.501 et. seq., Fla. Stat. (2008).
Fla. Code Jud. Conduct, Canons 1, 2, 3C(2).
§ 110.501, Fla. Stat. (2008).
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 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. See 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. See Id.
The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside. This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.
For further information, contact: Judge C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 101 N. Alabama Avenue, Suite 437, Deland, FL 32724.
Judge Roberto Arias, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge C. McFerrin Smith, III.
Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
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)