FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2012-11
Date of Issue: April 23, 2012
Whether a Judge has an obligation under the Code of Judicial Conduct to report possible criminal activity the judge becomes aware of during judicial proceedings.
During a hearing concerning an unborn child, the inquiring judge learned that the parents of this child were 16 and 21 years old, revealing a probable sex crime by the 21-year old. Only the 16-year old was represented by counsel.
Canon 2A requires a judge to respect and comply with the law, and to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
The only provisions in the Code of Judicial Conduct relating to a judge’s duty or obligation to report improper conduct are in Canon 3D, Disciplinary Responsibilities. Canon 3D(1) requires a judge to “take appropriate action” if the judge receives information or has actual knowledge that substantial likelihood exists that another judge has committed a violation of the Code; Canon 3D(2) requires a judge to “take appropriate action” if the judge receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar. See Fla. JEAC Ops. 97-17 and 98-21. Canon 3D(3) provides that the acts of a judge under this rule are part of a judge’s judicial duties and are absolutely privileged.
The Code has no similar rule requiring a judge to report matters, or to otherwise take “appropriate action,” when probable or possible criminal acts by litigants or witnesses are revealed during court proceedings.
In JEAC Opinion 78-4, a majority of the committee concluded that although there is no obligation to report criminal behavior revealed during a hearing, neither is there any ethical prohibition, thus leaving the determination to the judge’s own discretion. That opinion also contains a discussion of the “misprision of felony” statute, but concluded that it did not apply to the judge.
We therefore conclude that a judge who becomes aware of possible or probable criminal acts during a judicial proceeding has no obligation under the Code to report them.
The Committee notes, however, that this opinion is limited to the judge’s obligations under the Code of Judicial Conduct. The broader question of whether the judge may or may not have a moral, statutory or other non-Code obligation to report information gained during a judicial proceeding is beyond the authority of this Committee.
Therefore, the Committee concludes that a judge who becomes aware of possible criminal activity as a result of information received during court proceedings has no duty under the Code to report the matter, and that the judge is no different than a lawyer, a litigant, or a member of the public attending the court event. The judge may voluntarily report the information, but the protections of Canon 3D(3) may not apply, and there may be further ethical consequences, such as disqualification, depending on the facts involved.
Fla. Code Jud. Conduct, Canons 2A, 3D, 3D(1), 3D(2), and 3D(3).
Fla. JEAC Ops. 98-21, 97-17, and 78-4.
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.
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