February 24, 1992

(OPINION NO: 92-10
(Ex-parte proceedings

RE: Committee on Standards of Conduct Governing Judges - Your inquiry dated December 6, 1991

You ask in what manner may a judge ethically proceed to conduct an in camera examination of an attorney and client which satisfies the Rule of Professional Conduct 4-3.3 without violating Canon 3 of the Code of Judicial Conduct pertaining to ex-parte communications.

The committee is widely divided not only on interpretation of the Rule of Professional Conduct 4-3.3, but also how you should proceed. The consensus finally reached by the committee is that in all proceedings authorized by law to be held ex-parte, (for example, under Florida Rules of Civil Procedure 1.610 and 1.612), an ex- parte hearing may be held under 4-3.3, Rule of Professional Conduct. In all other cases, the opposing party must be notified, even if its a 4-3.3 hearing.

The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So2d 5 (Fla.1976).

With regards, I remain,

Yours very truly,

Jere Tolton, Chairman
Committee on Standards of Conduct Governing Judges

JT/mc

cc: All Committee Members

Participating members: Judges Tolton, Green, Levy, Booth, Dell, Doughtie, Goldstein, Farina, Rushing and Clarke, Esq.

All reference to the inquiring judge is deleted from the copies sent to the following individuals.
Mr. Sid White, Clerk of the Supreme Court of Florida
Judson Orrick, Managing Editor, The Florida Bar
Brooke S. Kennerly, Executive Director, Judicial Qualifications Commission.
Hon. Walter K. Stapleton, Chairman, Ethics Advisory panel of the Judicial Conference of the United States .
Cynthia Grey, Director, American Judicature Society
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Ms. Joan D. Cannon, Librarian, Supreme Court of Florida
William D. Wilkinson, Court Administrator, Lee County
Hon. Thomas H. Barkdull, Jr. , Third District Court of Appeal
Lynda Glyman, Esq. Center for Professional Responsibility, American Bar Association
Hon. Charles McClure, Chief Judge, Second Judicial Circuit
Office of State Court Administrator, Legal Affairs &Education