FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-28 (amended)1 
Date of Issue: February 7, 2013

ISSUES

May a judge preside over non-traffic civil cases in which either party is represented by an attorney who also serves as a civil traffic infraction hearing officer for the circuit?

ANSWER: Yes, but the judge should make an appropriate disclosure in accordance with the commentary of Canon 3E(1) if the judge has actual knowledge that the attorney serves as a civil traffic infraction hearing officer for the circuit.

FACTS

The inquiring county judge-elect is currently a civil traffic infraction hearing officer and is assisting the circuit as it considers hiring a replacement civil traffic infraction hearing officer.  Unclear from the inquiry is which person will be making the final hiring decision of the upcoming vacant civil traffic infraction hearing officer position.  The county in which the judge has been elected and in which the judge-elect currently presides as a hearing officer is a single-county-judge county, in which the judge also presides over traffic cases.

DISCUSSION

As a preliminary matter, the Committee notes that the chief judge, after consultation with the county judge(s) affected and with the approval of the chief justice, is empowered to select the civil traffic infraction hearing officer for the county.  See Fla. R. Traf. Ct. 6.630(c). 

Section A(2) of the Application provision to the Code of Judicial Conduct states that a civil traffic infraction hearing officer “should not practice law in the civil or criminal traffic court in any county in which the civil traffic infraction hearing officer presides.”  This Committee has advised that a part-time civil traffic infraction hearing officer may continue to practice law in the same circuit where the hearing officer presides as long as the practice does not include traffic matters and appeals of traffic matters.  See Fla. JEAC Op. 00-35. Therefore, as long as the part-time traffic hearing officer does not handle any county court traffic matters or any appeals from traffic court cases, the hearing officer may represent clients in civil matters before any judge in the county and circuit courts.

The current inquiry concerns the propriety of a county judge presiding over non-traffic civil cases in which the hearing officer represents a litigant.  Canon 3E(1) requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.  The commentary to this canon encourages judges to disclose information the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge does not believe there is a real basis for disqualification. 

In some circuits, civil traffic hearing officers and county judges who preside over traffic matters may attend continuing education courses together and consult with one another on traffic court issues of mutual concern and interest.  The professional relationship between a civil traffic hearing officer and a county judge who presides over traffic cases may be especially close in a single-county-judge county. A reasonable person may consider the professional relationship between a traffic hearing officer and a judge relevant to the question of disqualification, depending on the nature of the relationship, if any. 

In other circuits, especially larger ones, judges may have limited, if any, interaction with civil traffic hearing officers.  Other than county judges being offered the ability to consult on potential appointments by the chief judge of civil traffic hearing officers, many judges in larger circuits may not have any actual knowledge of the hearing officers.  If a judge has no actual knowledge of an attorney serving as a hearing officer for the circuit, then no disclosure is required.

           

In sum, disclosure by a judge, either circuit or county, that an attorney appearing before the judge also serves as a part-time civil traffic infraction hearing officer for the county is only required if the judge has actual knowledge that the attorney serves in that capacity.
           

           
REFERENCES

Fla. Code Jud. Conduct Canons 3E(1) and 3F; Application section A(2).

Fla. JEAC Op. 00-35.

Fla. R. Traf. Ct. 6.630(c).

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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 the Committee Chair: Judge Jonathan D. Gerber, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa,  Patricia E. Lowry, Esquire, Judge Michelle Morley, Judge Richard R. Townsend, Judge Dorothy L. Vaccaro. 


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator

 

1.The Committee originally issued Fla. JEAC Op. 2012-28 on September 18, 2012.  A judge has requested clarification of the opinion regarding the scope of the disclosure requirement as it pertains to larger circuits.