FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-21
Date of Issue: August 20, 2014

ISSUE

May a senior judge serve as a mediator in cases pending in a United States District Court or in a United States Bankruptcy Court that are geographically located within the state judicial circuit in which the senior judge presides?

ANSWER: No.

FACTS

The inquiring judge is a senior judge who serves as a mediator. The judge’s mediation practice includes a significant number of cases pending in the United States District Court and the United States Bankruptcy Court that are located within the state judicial circuit in which the judge presides as a senior judge.

DISCUSSION

Pursuant to the current Code of Judicial Conduct, a senior judge may serve as a mediator in the circuit in which the judge presides in limited circumstances. The judge may not serve as a mediator in a case in which the judge currently presides and may only mediate cases if the judge does not preside over the same type of case that the judge mediates in that circuit. Furthermore, the Code authorizes a senior judge to preside over all cases in circuits in which the judge does not provide mediation services. Canon 5F(2) Code of Judicial Conduct. Therefore, under the current Code, a senior judge could mediate cases in a federal court located in a circuit in which the judge presides, since it is a different type of case and different type of court.

The Supreme Court, on its own motion, reconsidered the foregoing provisions of the Code and amended the Code to add additional safeguards governing senior judges serving as mediators. See In re Amendments to the Code of Judicial Conduct; the Florida Rules for Certified and Court-Appointed Mediators; the Florida Rules of Civil Procedure; the Florida Rules of Judicial Administration; the Florida Rules of Juvenile Procedure; and the Florida Family Rules of Procedure – Senior Judges as Mediators, __So.3rd__, 2014 WL 2765822, 39 Fla. L. Weekly S434 (Fla. 2014). These amendments, which take effect on October 1, 2014, were intended to ensure that dual service as a senior judge and mediator does not result in an appearance of or the potential for impropriety. One of the safeguards that was added to the Code, to the commentary, and to the various rules that relate to mediations, prohibits a senior judge from serving as a mediator in any case in a circuit in which a senior judge is presiding as a judge. Id. at ___.

This Committee is called upon to determine whether or not the Supreme Court intended that the prohibition from serving as a mediator in the “circuit” in which the senior judge presides includes serving as a mediator in a case pending in a federal court located within the geographical “circuit” in which the judge presides. While the term “circuit” is ambiguous, this Committee concludes that the Supreme Court, in an effort to ensure that service as a senior judge and mediator does not result in an appearance of or the potential for impropriety, intended that senior judges should not mediate any case, federal or state, within the geographical circuit in which the senior judge presides.
         
In its recent opinion amending the Code, the Supreme Court expressed concerns about the propriety of senior judges serving as mediators:

Recently, because of the Court’s ongoing concern about the potential that a senior judge who serves as a paid mediator    could be seen as exploiting the judge’s judicial position or lending the prestige of judicial office to advance the private interests of the judge or a mediation firm with which the        judge may associate, or otherwise running afoul of the Code of Judicial Conduct, the Court began considering whether senior judges should no longer be allowed to serve as mediators. The Court published for comment amendments to the Code and rules that would have prohibited the dual service.

Id. at __. A majority of the comments, including the comments of this Committee, opposed the prohibition and urged that the proposed amendments were unnecessary. After considering the numerous comments, the Supreme Court concluded that senior judges should continue to be allowed to serve as mediators with certain safeguards, including a provision precluding service as a mediator in the circuit in which the senior judge presides.

This Committee gives great weight to the emphasis placed upon the word “any” by the Supreme Court in setting forth its first safeguard:

The first new safeguard, which we add to the Code and the various rules, prohibits a senior judge from serving as a mediator in any case in a circuit in which the senior judge is presiding as a judge.

Id. at __. The words “any case” should be strictly construed to accomplish the stated purpose of the amendment, which is “to further alleviate any concern that serving as a senior judge could be seen as inappropriately creating an advantage in obtaining mediation business for the senior judge or any mediation group in which the senior judge associates.” Id. at 435. In many cases, the lawyers and the parties appearing in federal court are the same lawyers and parties that may appear in state court in the geographical circuit in which the senior judge presides. 

In adopting the new safeguards, the Supreme Court referenced In re Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators, 915 So.2d 145 (Fla. 2005). In considering the recommendations of the ADRR & P Committee in its 2005 Order, the Supreme Court discussed the potential of conflicts of interest and the appearance of impropriety:

However, we believe potential conflicts of interest and the appearance of impropriety are more likely to arise when a senior judge presides over the same type of cases in court and in mediation in the same geographical area.  This potential is sufficient to warrant continuation of some geographic and subject-matter restrictions.

Id. at152.

The 2005 report of the ADRR & P Committee set forth several potential concerns when a senior judge serves as a mediator which were cited by the Supreme Court in the adoption of the 2005 amendments to the Code. These concerns are as follows:

(1) The self-determination of the parties could be compromised when a senior judge serves as a mediator; (2) the senior judge assignment might inappropriately create an advantage in obtaining mediation business for a senior judge or any mediation group with whom that senior judge associates; (3) the senior judge could be influenced in his or her judicial duties to favor potential mediation clients; and (4) the attorneys at mediation would be more deferential toward the mediator in anticipation of appearing before the mediator subsequently serving in a judicial capacity.

Id. at 148.

It is, therefore, reasonable to conclude that a geographical restriction was intended when the Court added the following language to Canon 5F(2): “A senior judge shall not serve as a mediator in any case in a circuit in which the judge is currently presiding as a senior judge,” and the following language to the Application Section of the Code: “A senior judge shall not practice law or serve as a mediator in a circuit in which the judge is presiding as a senior judge…” See Application Section, Florida Code of Judicial Conduct (2014).

The foregoing interpretation of the new amendments to Canon 5F(2) of the Code accomplish the objectives set forth by the Supreme Court in its opinions implementing revisions of Canon 5F(2) of the Code in 2005 and 2014. Therefore, the inquiring senior judge should not preside as a judge in the circuit in which the federal courts are physically located if the judge intends to mediate cases in federal court. Likewise, the judge should not mediate cases in federal court if the judge presides in that circuit.

REFERENCES

In re Report of the Alternative Dispute Resolution Rules and Policy Committee on
Senior Judges as Mediators, 915 So.2d 145 (Fla. 2005).

In re Amendments to the Code of Judicial Conduct; the Florida Rules for Certified and Court-Appointed Mediators; the Florida Rules of Civil Procedure; the Florida Rules of Judicial Administration; the Florida Rules of Juvenile Procedure; and the Florida Family Rules of Procedure – Senior Judges as Mediators, __So.3rd__, 2014 WL 2765822, 39 Fla. L. Weekly S434(Fla. 2014).

Fla. Code Jud. Conduct, Canon 5F(2) and Application Section.

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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.    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 Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

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 whether the proposed conduct violates a provision of that Code.


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, Judge Richard R. Townsend.

For further information, contact Dean Bunch, Chair, Judicial Ethics Advisory Committee, 3600 Maclay Boulevard, South, Tallahassee, Florida 32312.

 

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