FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-05
Date of Issue: March 11, 2020

ISSUE

Whether it would violate the Canons of Ethics for a judge presiding over a Dependency/Delinquency docket to meet with the attorneys working for Children’s Legal Services to discuss docket management, scheduling issues and expectations for motion practice, without also inviting other stakeholders including attorneys for the Guardian Ad Litem Program, the Office of the Regional Counsel, the office of Public Defender, the office of the State Attorney, the Department of Juvenile Justice, and private attorneys who have appeared in active cases before the presiding judge.

ANSWER: No, as long as the judge does not discuss any pending or impending cases thereby violating the rules against ex parte communication and does not create any doubt as to the judge’s impartiality.

FACTS

The inquiring judge was recently assigned to a Dependency/Delinquency Docket. The presiding judge has instituted several changes designed to make final hearings more efficient. Attorneys representing Children’s Legal Services have voiced their objections in open court. The supervising attorney for Children’s Legal Services has approached the inquiring judge and asked to meet to discuss “general procedural matters.”  Subsequent to submitting the inquiry to this Committee, the inquiring judge advises that yet another stakeholder has requested a one-on-one meeting. Neither of the parties requesting the meeting with the judge has advised the judge of exactly what they want to discuss.

 

DISCUSSION

The Canons do not prohibit a judge from meeting individually or collectively with stakeholders to discuss ways to improve courtroom procedure or make more efficient courtroom proceedings.1 Fla. Code Jud. Conduct, Canon 4 generally encourages each judge to engage in activities that will improve the administration of justice. See also Fla. Code Jud. Conduct, Canon 5A(1-6). Fla. Code Jud. Conduct, Canon 3B(8) encourages judges to “dispose of all judicial matters promptly, efficiently, and fairly.” The Commentary to Canon 3B(8) encourages judges to “monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs[.]“ In JEAC Op. 19-23, we opined that it was appropriate for a judge to contact the elected State Attorney, Public Defender or their designee to discuss judicial concerns about their attorneys that adversely affect the administration of justice. There is no ethical impediment to meeting solely for the stated purpose. Thus, the issue is not whether it is appropriate to have a discussion with an individual stakeholder about administrative or procedural matters. The inquiring judge agrees that the actual issue and concern surrounds exactly what will be discussed and if those discussions have the potential of becoming ex parte communications on pending or impending matters.

Fla. Code Jud. Conduct, Canon 3B(7) states, “[a] judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding[.]” Fla. Code Jud. Conduct, Canon 3B(9) directs that a judge “shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.” The Commentary to Canon 4A advises that while participating in activities designed to improve the administration of justice, a judge must avoid making statements that “may cast reasonable doubt on the judge’s capacity to act impartially and may undermine the independence and integrity of the judiciary.”

As a part of the inquiry, the Committee was provided with additional information that suggests the reason for the requested meeting is borne out of disagreement with the new procedures the inquiring judge has put into place. Since submitting the inquiry to this Committee, the inquiring judge advises that another stakeholder has requested a meeting. The inquiring judge has not been advised as to what, in particular, will be the topic(s) of discussion but the judge is of the impression that whatever will be discussed will relate to matters that have occurred in the courtroom. At least one member of this Committee is concerned that the meeting will devolve into something more than issues related solely to “scheduling” and “docket management.”

If, as the inquiring judge suspects, the purpose for the meeting is to discuss the effect of the new rules on future cases as evidenced by what occurred in past cases, that would make the upcoming discussions about pending or impending cases and would violate the Canons. While it is possible that specific cases or fact patterns will not be mentioned, it is difficult to see how such a discussion relating to newly initiated courtroom procedures could take place without reference to how the modified procedures have affected past cases or will affect future cases. Though we answer the question presented in the negative, we think, considering the circumstances presented here, it would be prudent for the inquiring judge to decline the meetings or invite all of the stakeholders to be present. A “judicial roundtable” or “brown bag lunch” where all of the interested parties are invited to be present are possible suggestions. At the very least, before accepting a meeting with any stakeholder we would suggest that the judge first inquire as to exactly what topic(s) will be the subject of discussion to help the judge determine whether the one-on-one meeting and/or discussion will violate the Canons.

Should the inquiring judge choose to meet with any stakeholders one-on-one, we recommend that the inquiring judge advise the stakeholders requesting a meeting of the intent to alert all other stakeholders of the meeting and the intent to allow those stakeholders to attend if requested. We also recommend that each of the stakeholders requesting a meeting or attending the meeting should be provided with a copy of Fla. Code. Jud. Conduct, Canons 3B(7)-(8)&(10) so that counsel will be mindful of what the proper boundaries are for any discussion. Finally, the judge should remain cognizant of the guidance provided in the Commentary to Canon 3B(8). There it is explained that when disposing of matters “promptly, efficiently, and fairly” judges must show “due regard for the rights of the parties to be heard” and the “parties should not feel coerced into surrendering the right to have their controversy resolved by the courts.”

 

REFERENCES

Ford v. State, 374 So. 2d 496, 498 (Fla. 1979)
Fisher v. State, 248 So. 2d 479, 487 (Fla. 1971)
Fla. Code Jud. Conduct, Canons 3B(7)(8)&(9), 4, 5A(1-6)
Commentary to Canons 3B(8), 4A
JEAC Op. 2019-23

_____________


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 W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.

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, Supreme Court Clerk
All Committee Members
General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel

 

1. Trial judges have considerable latitude in deciding whether to alter orderly courtroom procedure. Ford v. State, 374 So. 2d 496, 498 (Fla. 1979). The purpose of such rule is to clothe the trial court with full and complete power to enforce all rules of procedure and the conduct of all parties in the trial of the cases or hearings before him or her. It is an essential power and one necessary to the orderly functioning of the courts and the fair and efficient administration of justice. Fisher v. State, 248 So. 2d 479, 487 (Fla. 1971).