FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-05
Date of Issue: March 10, 2017

ISSUE 1

May a senior judge serve as a court-appointed, litigant-paid independent investigator in a shareholders’ derivative action in a circuit where the judge does not preside?

ANSWER: Yes.

ISSUE 2

If permitted to serve in that capacity, is the senior judge required to disclose such service and/or refrain from presiding over cases involving certain parties, lawyers, and law firms?

ANSWER: Yes.

 

FACTS

The inquiring retired judge has been approved by the Florida Supreme Court for state-wide judicial service as a senior judge. The senior judge has been requested to serve as an independent investigator in accordance with section 607.07401(3)(c), Florida Statutes (2016), to determine in good faith and report to the circuit court, whether or not a shareholders’ derivative suit is in the best interest of the corporation. A determination that the derivative suit is not in the best interest of the corporation may lead to or support dismissal of the suit. The senior judge confirmed that the appointment would be at the corporation’s request, presented to the presiding judge by motion, and that the corporation would have initial responsibility for paying the senior judge for services rendered and expenses incurred. The anticipated appointment is pending in a circuit where this judge is not currently serving as a senior judge, and in which the judge last served several years ago.

 

DISCUSSION ISSUE 1

Dual service as both a senior judge and some other quasi-judicial role is not per se 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 Amends. to Code – Senior Judges Serving as Voluntary Trial Resolution Judges & Arbitrators, 194 So. 3d 1015 (Fla. 2016); In re Amends. 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 . . . ” Appointed Mediators,141 So. 3d at 1173 (footnotes 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 Amends., 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 . . .

Although the Supreme Court did not address litigant-paid special magistrates when it twice amended Canon 5F(2), we concluded in Fla. JEAC Op. 16-18 that the ethical concerns and reasons underlying the same-circuit dual-service prohibition regarding mediators, arbitrators, and voluntary trial resolutions judges applied with equal force to court-appointed, litigant-paid special magistrates.

Here, the senior judge serving as an independent investigator will likely be called upon to examine the merits of the proposed claims, interview witnesses, obtain input from counsel from both sides, and make a reasoned determination in good faith of whether the derivative suit is in the corporation’s best interest. See Atkins v. Topp Comm, Inc., 874 So. 2d 626, 627 (Fla. 4th DCA 2004).  Those functions are similar to services provided by senior judges serving as arbitrators, voluntary trial resolution judges, and special magistrates.  Because the motion to appoint the independent investigator must come from the corporate defendant, the concerns expressed in the comments to Canon 5(F) discussed above, about ensuring a senior judge’s impartiality, apply here.

Therefore, we conclude that the same 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 section 607.07401 court-appointed, litigant-paid independent investigator in any case in a circuit in which the judge is currently presiding as a senior judge.  Here, the senior judge may serve as the independent investigator because those services are not being provided where the judge currently presides.  The senior judge may not preside over any case in the same circuit.

 

DISCUSSION ISSUE 2

We believe that Canon 5F(2) would require the senior judge to disclose current, prior, agreed upon future, or negotiations for service as an independent investigator involving any party, attorney, or law firm involved in a case pending before the senior judge.  Furthermore, we believe that absent express consent from all parties, for a period of three years, a senior judge is prohibited by Canon 5F(2) from presiding over any case involving any attorney, party, or law firm that is or has utilized the judge as an independent investigator or in any other dual-service capacity.

 

REFERENCES

§ 607.07401, Fla. Stat. (2016)
In re Amends. to Code of Judicial Conduct – Senior Judges Serving as Voluntary Trial Resolution Judges & Arbitrators, 194 So. 3d 1015 (Fla. 2016); In re Amends. to Code of Judicial Conduct – Appointed Mediators, 141 So. 3d 1172 (Fla. 2014).
Atkins v. Topp Comm, Inc., 874 So. 2d 626 (Fla. 4th DCA 2004).  
Fla. Code Jud. Conduct, Canons 2, 5D, 5F(2), and Commentary to Canon 5F(2)
Fla. JEAC Ops. 16-18 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