FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2015-15
Date of Issue: December 22, 2015

ISSUE

May a senior judge serve as an appellate mediator where the cases arise from the appeal of cases within the appellate court’s jurisdiction, but from outside of the state judicial circuit where the inquiring judge serves as senior judge?

ANSWER: Yes, if restrictions regarding geography and subject matter are not implicated; certification requirements are met; and doing so would not result in an appearance of or the potential for impropriety.

FACTS

The inquiring judge retired from the circuit court bench, and is now a senior judge assigned to preside over circuit and county court cases located within one state judicial circuit. The senior judge inquires about also serving as an appellate mediator with the District Court of Appeal that includes the inquiring judge’s state judicial circuit. The District Court of Appeal handles appeals from four (4) circuits. Thirteen counties make up the four (4) circuits. The inquiring judge’s circuit consists of two (2) counties. The judge’s particular inquiry is whether appellate mediation services may be provided to the three (3) circuits outside of the circuit where the judge presides as senior judge. Therefore, the inquiring judge would like to provide appellate mediation services for appeals arising out of eleven of the thirteen counties within the jurisdiction of the District Court of Appeal.

 

DISCUSSION

Senior judges are permitted, subject to certain restrictions, to perform mediation services during the time of their service as a senior judge. 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 an appellate mediator in cases falling within the jurisdiction of the appellate court, but outside of the assigned circuit where the inquiring judge presides as senior judge.

This Committee opined in Florida Judicial Ethics Advisory Committee Opinion 14-21 that while the term “circuit” is ambiguous, 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 within the geographical circuit in which the senior judge presides. See In re Amendments to Code of Jud. Conduct - Senior Judges as Mediators, 141 So. 3d 1172 (Fla. 2014).

In Florida Judicial Ethics Advisory Committee Opinion 15-08, this Committee opined that Canon 5F(2) also prohibits a senior judge from mediating cases arising out of appeals from the circuit in which the senior judge presides.

In this inquiry, the judge indicates there would not be mediation of cases arising out of appeals from the circuit in which the senior judge presides. Although it appears there will be different geographical locations and different subject matter of cases involved in this inquiry, the same attorneys or parties may come before the inquiring judge at both the appellate mediation and at the trial level, for instance. Keeping a geographical distance to avoid the appearance of potential impropriety is discussed in Opinion 14-21. In Florida Judicial Ethics Advisory Committee Opinion 09-10, this Committee advised that the restrictions regarding geography and subject matter set forth in Canon 5F(2) may not be waived by consent.

Canon 5F(2), revised June 19, 2014, provides in pertinent part:

(2) A senior judge may serve as a mediator in a case in a circuit in which the senior judge is not presiding as a judge only if the senior judge is certified pursuant to rule 10.100, Florida Rules for Certified and Court-Appointed Mediators. . . . 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… A senior judge shall disclose if the judge is being utilized or has been utilized as a mediator by any party, attorney, or law firm involved in the case pending before the senior judge. Absent express consent of all parties, a senior judge is prohibited from presiding over any case involving any party, attorney, or law firm that is utilizing or has utilized the judge as a mediator within the previous three years. A senior judge shall disclose any negotiations or agreements for the provision of mediation services between the senior judge and any of the parties or counsel to the case.

(emphasis added).

The Commentary to Canon 5F(2) provides further emphasis:

The purpose of the admonitions in this canon is to ensure that the impartiality of a senior judge is not subject to question. Although a senior judge may act as a mediator or arbitrator in a circuit in which the judge is not presiding as a senior judge, attention must be given to relationships with lawyers and law firms which may require disclosure or disqualification.

(emphasis added).

In adopting the new safeguards, the Supreme Court referenced In re Report of the Alternative Dispute Resolution Rules & Policy Committee on Senior Judges as Mediators, 915 So. 2d 145 (Fla. 2005), where the following potential concerns were raised when a senior judge serves in a dual role:

(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.

Canon 3E(1)(a) of the Code of Judicial Conduct provides that: “A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.” (emphasis added). The Commentary to Canon 3E(1) provides that “A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”

Based upon the foregoing considerations, Canon 5F(2) would not bar the inquiring judge from mediating cases arising from appeals outside of the circuit in which the senior judge presides as long as restrictions regarding geography and subject matter are not implicated; certification requirements are met; and doing so would not result in an appearance of or the potential for impropriety.

 

REFERENCES

In re Amendments to Code of Jud. Conduct - Senior Judges as Mediators, 141 So. 3d 1172 (Fla. 2014); In re Report of the Alternative Dispute Resolution Rules & Policy Comm. on Senior Judges as Mediators, 915 So. 2d 145 (Fla. 2005).

Fla. Code Jud. Conduct, Canons 3(E)(1)(a), 5F(2); Commentary to Canons 3E(1), 5F(2); Application Section.

Fla. JEAC Ops. 15-08, 14-21, 09-10.

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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.

For further information, contact Judge Barbara Lagoa, Chair, Judicial Ethics Advisory Committee, Third District Court of Appeal, 2001 S.W. 117th Avenue, Miami, FL 33175.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Miguel de la O, Judge Jack Espinosa, Jr., Judge Barbara Lagoa, Judge Spencer D. Levine, Patricia E. Lowry, Esquire, Judge Michael Raiden.


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