FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-10
Date of Issue: April 19, 2012

ISSUES

(1)  Whether a retired judge eligible to serve on assignment to temporary judicial duty may mentor a law firm’s associates in effective trial practice.

ANSWER: No.

(2)  Whether a retired judge eligible to serve on assignment to temporary judicial duty may assist a law firm in developing state-wide and multi-state alternative dispute resolution programs.

ANSWER: No.

(3)  If (1) or (2) are permitted, whether the senior judge may permit the law firm to announce the judge as a partner with the firm.

ANSWER: This question is moot based on the Committee’s responses to questions (1) and (2).

(4)  If (3) is not permitted, whether the retired judge may maintain the status of senior judge but accept no judicial assignments so long as the relationship with the law firm exists.

ANSWER: This question is moot based on the Committee’s responses to questions (1), (2) and (3).

FACTS

The inquiring retired judge is eligible to serve as a senior judge, and has done so on occasion. The bulk of the inquiring senior judge’s post-retirement professional activities are dedicated to performing circuit civil mediation and acting as a consultant in the development and implementation of managed mediation programs for various clients. A law firm offered the senior judge a position as partner. In this capacity, the inquiring senior judge would mentor attorneys in effective trial practice and assist the law firm in developing state-wide and multi-state alternative dispute resolution programs. The inquiring senior judge would be paid by the hour; would have no ownership or financial interest in the law firm; and would not personally engage in the practice of law. 

DISCUSSION

The Application section of the Code of Judicial Conduct authorizes the use of retired judges to serve on assignment to temporary judicial duty. These “senior judges” are required to comply with all the provisions of the Code except Canons 5C(2), 5E, 5F(1), and 6A.    

Although senior judges are expressly exempt from compliance with Canon 5F(1), they are required to comply with Canon 5F(2). This section of the Code provides that senior judges “may be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services but that are not otherwise engaged in the practice of law. However, such senior judge may in no other way advertise, solicit business, associate with a law firm or participate in any other activity that directly or indirectly promotes his or her mediation services” (emphasis added).

Here, the inquiring senior judge contemplates associating with an entity (a law firm) regularly engaged in the practice of law to mentor attorneys and to develop alternative dispute resolution programs. Based on the plain language of Canon 5F(2), such an activity directly conflicts with the ethical obligations required of retired judges eligible to serve on assignment to temporary judicial duty. The prohibition against a senior judge associating with an entity that engages in the practice of law exists even if the senior judge refrains from accepting temporary judicial assignments while the association with the law firm is ongoing. Based on the foregoing, all of the inquiring senior judge’s inquiries are answered in the negative. However, if the inquiring retired judge does not desire to be assigned to judicial service, “such judge shall be entitled to all the rights of an attorney-at-law and no longer be restricted to the Code of Judicial Conduct.”

REFERENCES

Fla. Code Jud. Conduct, Application of the Code of Judicial Conduct; Canon 5F(2).

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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 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 Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The 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: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401-6161.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Jose′ Rodriguez, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
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