FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2016-18
Date of Issue: October 25, 2016

ISSUES

May a senior judge serve as a litigant-paid special magistrate in a circuit in which the judge is currently presiding as a senior judge?

ANSWER: No.

FACTS

The inquiring retired judge serves as a senior judge in multiple circuits, and has been asked by certain sitting judges to serve as a special magistrate in a circuit where the inquirer serves as a senior judge. The retired judge’s compensation for serving as a special master would be paid by the litigants. The inquiring retired judge envisions that the duties and tasks of a special magistrate would be substantially similar to what is contemplated in Florida Rule of Civil Procedure 1.490(b) and (d). The senior judge notes that a special magistrate can only serve by agreement of the parties pursuant to Florida Rule of Civil Procedure 1.490(c). The inquiring senior judge believes that one proposed appointment was initiated by a lawyer requesting the sitting judge to specifically appoint this senior judge as a special master. Another proposed appointment was understood to have originated with the sitting judge, and this senior judge’s appointment would have been subject to the agreement or objection of the parties and their counsel. The inquiring judge has refrained from accepting any such appointments as a special magistrate within the circuits in which the judge sits as a senior judge.

 

DISCUSSION

Dual service as both a senior judge and some other quasi-judicial role per se is not prohibited. Fla. JEAC Op. 09-05 approved of a retired judge serving as both a senior judge and a traffic infraction hearing officer in the same circuit, where the retired judge’s compensation in each role was apparently paid by the government.

Our Supreme Court has made it clear in opinions amending Canon 5F that a senior judge is not permitted to engage in certain privately paid dual-service positions, such as mediator, arbitrator, or voluntary trial resolution judge in a circuit in which the judge is presiding as a senior judge. In Re Amend. to Code - Senior Judges Serving as Voluntary Trial Resolution Judges and Arbitrators, 194 So. 3d 1015 (Fla. 2016); In Re Amend. to Code of Judicial Conduct - Appointed Mediators, 141 So. 3d 1172 (Fla. 2014). The court expressed its “ongoing concern about the potentialthat 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.” 141 So. 3d at 1173 (footnote omitted). Even though no one reported awareness of any abuse, the Supreme Court was concerned that such dual-service could run afoul of Canons 2 and 5D. Id.

To address its concerns about dual service, the court added a safeguard of a geographic nature to the Code of Judicial Conduct that “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 1174. The safeguard was implemented by amending Canon 5F(2), the commentary to that canon, certain rules of judicial administration, and certain court rules concerning mediation. In 2016, this same-circuit dual-service geographic safeguard was expanded to prohibit a senior judge from serving as a voluntary trial resolution judge or arbitrator in any case in a circuit in which the judge is currently presiding as a senior judge. In Re Amend., 194 So. 3d at 1015.

The amended Commentary to Canon 5F(2) states that:

The purpose of the admonitions in this canon is to ensure that the impartiality of a senior judge is not subject to question. . . . These provisions are intended to prohibit a senior judge from soliciting lawyers to use the senior judge’s mediation services when those lawyers are or may be before the judge in proceedings where the senior judge is acting in a judicial capacity . . . .

The JEAC has interpreted the same-circuit dual-service safeguard to prohibit a senior judge from mediating any cases pending in a United States District Court or a Bankruptcy Court located within the circuit in which the senior judge presides. Fla. JEAC Op. 14-21. We reached that conclusion in part by strictly construing the term “any case” in the prohibition against mediating any case in the same circuit where the judge presides as a senior judge. Id. at 2. We also noted that “[i]n 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.” Id. at 2.

The Supreme Court did not address litigant-paid special magistrates when it twice amended Canon 5F(2). The requirement for unanimous party agreement, coupled with the existing practice of counsel requesting appointment of a specific senior judge as a special magistrate, creates opportunities for a senior judge to solicit or encourage lawyers to consent to or specifically request the senior judge’s appointment.

Therefore, we conclude that the ethical concerns and reasons underlying the same-circuit dual-service prohibition regarding mediators, arbitrators, and voluntary trial resolution judges, logically apply with equal force to prohibit same-circuit dual- service as a litigant-paid special magistrate in any case in a circuit in which the judge is currently presiding as a senior judge.

 

REFERENCES

Fla. R. Civ. Pro. 1.490(b), (c) and (d).
In Re Amendments to Code of Judicial Conduct - Senior Judges Serving as Voluntary Trial Resolution Judges and Arbitrators, 194 So. 3d 1015 (Fla. 2016); In Re Amendments to Code of Judicial Conduct - Appointed Mediators, 141 So. 3d 1172 (Fla. 2014).
Fla. Code of Jud. Conduct, Canons 2, 5D, 5F(2), and Commentary to Canon 5F(2)Fla. JEAC Ops. 14-21, and 09-05

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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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Spencer D. Levine, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Blvd., West Palm Beach, FL 33401

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Lisa Davidson, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


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