FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-13
Date of Issue: June 19, 2014

ISSUE

May a Civil Traffic Infraction Hearing Officer serve as President of the Board of Directors of Legal Aid?

ANSWER: Yes.

 

FACTS

The inquiring civil traffic infraction hearing officer, who is also engaged in the private practice of law, has been asked to serve as President of a legal aid organization which provides legal services to the indigent within the county in which the hearing officer presides. The staff attorneys of the legal aid organization do not practice in civil or criminal traffic court nor would they have an occasion to represent a legal aid client in the hearing officer’s court.

 

DISCUSSION

Section 318.36, Florida Statutes, provides that civil infraction traffic hearing officers are subject to the Florida Bar Code of Professional Responsibility and not subject to the Judicial Code of Ethics. However, the Statute also provides that hearing officers should avoid practices that would constitute a conflict of interest or give an appearance of impropriety. Notwithstanding this statute, the Supreme Court, in the Application Section of the Code of Judicial Conduct, has directed that civil traffic infraction hearing officers shall conform with Canons 1, 2A, and 3 of the Code of Judicial Conduct, and such other provisions of the Code that might reasonably be applicable, depending upon the nature of the judicial function performed. Therefore, this Committee has previously opined that civil traffic infraction hearing officers are subject to Florida’s Code of Judicial Conduct, and may seek opinions from the Judicial Ethics Advisory Committee. Fla. JEAC Op. 10-17.

This Committee has previously opined that a judge could not be on the board of directors of a legal aid organization if the organization engaged in litigation directly or represented impoverished people through the use of staff counsel. The Committee concluded that this would be in violation of Canons 4 and 5, Florida Code of Judicial Conduct. Fla. JEAC Op. 86-16.

It is important to note that Fla. JEAC Op. 86-16 involved a judge who contemplated serving on the Board of Legal Aid and not a civil infraction traffic hearing officer.  Judges are bound by the entire Code and are not exempted from Canons 4 and 5 as are the hearing officers.

This inquiry is similar to the traffic hearing officer’s inquiry in Fla. JEAC Op. 10-17. In that opinion, the traffic hearing officer was advised that the hearing officer could contribute $350 to Legal Aid in lieu of pro bono hours and could perform pro bono legal service for legal aid for so long as the work was not in civil or criminal traffic court. The Committee based its opinion upon the premise that this conduct involved activity regulated by Canons 4 and 5 which do not apply to hearing officers. However, the Committee indicated that the hearing officer would be in violation of Canon 2A should legal aid be involved in representing impoverished people in matters that come before the hearing officer or come before the civil or criminal traffic courts in which the hearing officer presides.           

Unlike a judge, a hearing officer is authorized to practice law and be a partner in a law firm if the lawyer or law firm does not practice in traffic court. Likewise, a hearing officer is also permitted to perform pro bono hours for legal aid for so long as legal aid staff attorneys do not represent clients who come before the hearing officer or appear in civil or criminal traffic court. It is logical to extend this rationale to a hearing officer’s service as an officer or director of legal aid. Therefore, the inquiring hearing officer may serve as President of the Board of Directors of Legal Aid for so long as the organization does not represent clients in traffic court or otherwise engage in litigation in traffic court.

 

REFERENCES

Florida Statutes, Section 318.36

Fla. Code Jud. Conduct, Canons 1, 2A, 3, 4 and 5

Fla. JEAC Op. 10-17

Fla. JEAC Op.  86-16

 

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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 to 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 Judge Roberto Arias, Chair, Judicial Ethics Advisory Committee, Duval County Courthouse, 501 West Adams Street, Room 7180, Jacksonville, Florida 32202-4603.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge 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 Michael Raiden and Judge Richard Townsend.  


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