FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2016-22
Date of Issue: December 12, 2016

ISSUE

Whether a senior judge may work part time for an insurance adjusting company as an insurance umpire in any circuit in which the senior judge may preside.

ANSWER: No.

FACTS

The inquiring judge will be taking senior judge status in January of 2017, and is considering part time employment with an insurance adjusting company as an “insurance umpire.”  The inquiring judge states that the office the judge would work for is located in one county, but performs work in many other counties, and specifically asks whether it is permissible to work as an insurance umpire in any county in which the inquiring judge serves as a senior judge.

 

DISCUSSION

Senior judges subject to recall must comply with all provisions of the Code of Judicial Conduct, with limited exceptions. See Fla. Code Jud. Conduct, Application (stating that a senior judge “shall comply with all the provisions of this Code except Sections 5C(2), 5E, 5F(1), and 6A”); Fla. JEAC Op. 06-02. To that end, Florida Code of Judicial Conduct, Canon 5G provides that “[a] judge shall not practice law,” and Canon 5D(3) states that a judge “shall not serve as an officer, director, manager, general partner, advisor or employee of any business entity.”  Indeed, the restrictions contained in Canon 5D(3) are “one of the few per se proscriptions on lawful off-the-bench activities to be found in the Code.”  Fla. JEAC Op. 97-35. See also Fla. JEAC Op. 16-12.

Subject to clear restrictions and disclosure requirements, the Code does permit senior judges to engage in certain dual service roles, such as mediator, arbitrator, or voluntary trial resolution judge. Although the Florida Statutes do not contain a definition for “insurance umpire,” an umpire is sometimes judicially appointed and other times appointed by appraisers pursuant to the terms of an insurance policy during the appraisal process of a property insurance dispute. Unless the role of insurance umpire is sufficiently equivalent to that of a certified mediator, arbitrator, or voluntary trial resolution judge, employment would be prohibited by the Code and the inquiring judge may not engage in part time employment as an insurance umpire.

As noted, the Code permits senior judges to engage in certain dual services, in the role of mediator, arbitrator, and voluntary trial resolution judge, outside of any circuit in which the senior judge serves as a senior judge. See Fla. Code Jud. Conduct, Canon 5F(2); Fla. JEAC Op. 15-15. Even if the role of insurance umpire was substantially similar to those permitted dual service roles, the inquiring senior judge would be subject to the same restrictions and disclosure requirements set forth in the Code. Among other restrictions, senior judges providing a dual service, such as mediation, through an entity may only be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services. Fla. Code Jud. Conduct, Canon 5F(2). Here, the inquiring judge anticipates providing the insurance umpire services while affiliated with a company that describes itself as an all-line insurance adjusting service company that offers services such as claims adjusting, appraisals, scene investigations, umpire services, and mediation. Because that entity is not solely engaged in offering alternative dispute resolution services, the senior judge may not be affiliated with that company while providing any dual services if also serving as a senior judge.

Regardless of entity affiliation, a senior judge is prohibited from providing any dual services within any circuit in which the senior judge serves as a senior judge. In Opinion 16-18, we concluded that a senior judge serving as a court appointed, litigant-paid special master would be subject to the same geographical restriction. “A senior judge shall disclose if the judge is being utilized or has been utilized as a mediator, arbitrator, or voluntary trial resolution judge by any party, attorney, or law firm involved in the case pending before the senior judge.”  Fla. Code Jud. Conduct, Canon 5F(2). The senior judge must also disclose if there have been any negotiations or agreements between the judge and any of those same parties or attorneys for any such dual services. Furthermore, absent express consent from all parties, for a period of three years, a senior judge cannot preside over any case involving any attorney, party, or law firm that is utilizing or has utilized the judge as a mediator, arbitrator or voluntary trial resolution judge. Id.

For the reasons set forth above, we conclude that the inquiring judge must not serve as a senior judge and as an insurance umpire affiliated with an entity as described above. Nor does the information provided to us here indicate that serving as an insurance umpire is necessarily the equivalent of serving as a mediator, arbitrator, voluntary trial resolution judge, or litigant-paid special master; therefore, we find that it would not be permitted under the guidelines set forth in Canon 5F(2) for permissible several dual service roles.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 5D(3),5F(2),5G, Application
Fla. JEAC Ops. 16-18, 15-15, 06-02, and 97-35.

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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