FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-11
Date of Issue: April 27, 2010

ISSUES

(1) Whether a judge may retain an attorney and negotiate a reduction from the attorney’s usual rate.

ANSWER: Yes.

(2) Whether a judge must report any fee discount or reduction as a gift.

ANSWER: Yes, depending on facts not included in this Inquiry.

(3) Whether a judge may accept from a former employer partial reimbursement of attorney’s fees incurred by the judge in connection with the judge’s former employment.

ANSWER: Yes.

FACTS

Prior to taking the bench, the inquiring judge was employed by a governmental entity in an executive capacity.  A member of the entity’s governing board is now under investigation, and the inquiring judge has been listed as a fact witness in the investigation. The judge’s former employer is providing an attorney free of charge to former employees being called as witnesses in this investigation.  The judge has retained counsel for this investigation and has negotiated an attorney’s fee rate somewhat lower than counsel usually charges.  The judge’s former employer has offered to reimburse a portion of these fees to the judge’s attorney, but at the same lower rate the entity is paying counsel for the other employees. The inquiring judge would personally pay the difference between the fee negotiated and the fee the former employer reimburses. The judge has voluntarily entered a disqualification order for any other cases being handled by this counsel and from any cases involving the former employer.

DISCUSSION

Nothing in the Florida Code of Judicial Conduct prohibits a judge from retaining personal counsel and negotiating the fee to be paid. However, the negotiated fee cannot be so low that it can reasonably be perceived as exploiting the judge’s judicial position. Canon 5D(1)(a). This Inquiry does not disclose why the judge’s attorney is willing to accept a lower rate than the attorney usually charges. The inquiring judge should inquire and insure that the fee rate is based on legitimate considerations other than the mere fact that the prospective client is a judge.

Determining the basis for the attorney’s fee rate discount may also answer the question of whether the discount must be reported as a gift, under Canons 5D(5)(h) and 6B(2). If the discount were based on routine business considerations, such as the time and labor involved, the uncomplicated nature of the representation, or the experience of the attorney in handling similar cases, all factors unrelated to client’s judicial office, no “gift” is likely to be implicated. However, if the discount were based on non-business factors, such as a professional courtesy, available to any member of the legal community, not just judges, a “gift” would appear to exist.

The inquiring judge should note that not all gifts are required to be reported under Canons 5D(5)(h) and 6B(2). Fla. JEAC Ops. 02-20 and 03-10. If this fee discount is a gift, and if this gift is not included as one of the gifts listed in Canon 5D(5) (a) through (g), it would fall into the “other” category of Canon 5D(5)(h) and must be reported.

This committee is aware of no provision of the Code, court opinion, or ethics opinion addressing the propriety of a judge accepting reimbursement of attorney’s fees incurred by the judge in connection with the judge’s former employment. In an inquiry based on very different facts, this committee concluded that nothing in the Code prohibits a judge from accepting contributions for attorneys’ fees where the judge was accused of misconduct. Fla. JEAC Op. 98-11. In this inquiry, the former employer is also contributing attorney’s fees to other, non-judge employees, so it is hard to imagine a rule that would require the judge to decline equal treatment. However, while accepting the former employer’s reimbursement, the judge should be careful to comply with other provisions of the Code, including disqualification, where appropriate. Fla. JEAC Op. 05-15.

REFERENCES

Fla. Code Jud. Conduct, Canons 5D(1)(a), 5D(5) and 6B(2)
Fla. JEAC Ops. 98-11, 02-20, 03-10, 05-15

_____________

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 T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Judge C. McFerrin Smith III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.


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)