FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-01
Date of Issue: January 18, 2017

ISSUES

1. Is a part-time traffic hearing officer disqualified from hearing all cases being represented by attorneys to whom the traffic hearing officer had previously referred traffic-related cases?

ANSWER: No, so long as the cases in which the officer is presiding are not those which were referred to the lawyers.

2. Should the traffic hearing officer be required to disclose the previous practice of referring cases to the attorneys when those attorneys are appearing before the officer.

ANSWER: No, unless the traffic hearing officer believes the nature of the friendship or relationship is sufficient to warrant reasonable concern over the officer’s impartiality.

 

FACTS

The inquirer is a newly appointed part-time traffic hearing officer. Previously, the inquirer and the inquirer’s law firm would refer traffic cases to two lawyers who specialized in traffic matters. Neither the inquirer nor the law firm received any remuneration for the referrals.

The inquirer wants to know if the inquirer is disqualified from hearing all traffic matters being handled by those attorneys, and, if the inquirer is not disqualified, would disclosure of the prior referrals be required.

 

DISCUSSION

“All traffic hearing officers shall be subject to the Code of Judicial Conduct as provided in the application section of the code.” Fla. R. Traf, Ct. 6.630(j). In relevant part, Canons 1, 2, and 3 of the Florida Code of Judicial Conduct apply to traffic hearing officers.

Canon 1 requires judges to personally observe high standards of conduct “so that the integrity and independence of the judiciary may be preserved.”

Canon 2 requires judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2B prohibits a judge from allowing “family, social, political or other relationships to influence the judge’s judicial conduct or judgment.”

Lastly, Canon 3E(1) provides, in relevant parts, that:

(1) 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:

(a) 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. . .

The commentary to Canon 3E(1) further 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.”

This Committee has previously dealt with questions dealing with disclosure of close personal friendships between judges and attorneys appearing before the judge. In JEAC Op. 2004-35, this Committee recognized that “the question of when a judge must reveal [a] close, personal relationship with an attorney is very difficult to address.” (quoting Fla. JEAC Op. 93-56). However, the Committee nevertheless, recommended that the judge disclose the existence of the friendship if, in the judge’s estimation, the nature of the friendship is sufficient to warrant reasonable concern over the judge’s impartiality. The determination of whether there is a need for disclosure or disqualification, based upon personal and professional friendships, is different than when there has previously been a professional relationship with the judge or a close family member. Thus, disqualification is mandated whenever a lawyer is actually representing the judge or a close family member, Fla. JEAC Ops. 99-13; 06-26; 08-06; 07-14; 01-17, or there is an ongoing business relationship, Fla. JEAC Op. 15-10 and opinions cited therein.

Disclosure, on the other hand, is mandatory if the judge believes the information is relevant to the question of disqualification. Fla. JEAC Op. 01-07. Therefore, in JEAC Op. 13-02, this Committee opined that the inquiring judge was not disqualified from hearing cases being handled by a lawyer or the firm with whom the judge had consulted but who had not been hired to represent the judge. Additionally, the Committee recognized that there are a number of factors that judges should consider in deciding the issue of disclosure, depending on the type of circumstances leading to such analysis. The determination of whether the judge’s impartiality might reasonably be questioned depends upon the nature and extent of the relationships between the judge and lawyer. Here, there has never been any financial, business, or professional relationship or association between the inquiring traffic hearing officer and the lawyers, other than a mere referral. Therefore, disqualification is not required, unless in those cases the officer referred to the lawyers. With regards to disclosure, based upon the commentary to Canon 3E and the opinions referred to above, the inquiring traffic hearing officer should disclose the prior referrals for a reasonable period of time if the traffic hearing officer believes the nature of the friendship or relationship is sufficient to warrant reasonable concern over the officer’s impartiality. Fla. JEAC Op. 04-35.

 

REFERENCES

Fla. R. Traf. Ct. 6.630(j).
Fla. Code Jud. Conduct, Canons 1, 2, 2B, 3E(1).
Fla. JEAC Ops. 15-10, 13-02, 08-06, 07-14, 06-26, 04-35, 01-17, 01-07, 99-13, 93-56.

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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