February 3, 1993
Compliance with the Code - Retired/Senior Judge
Appearance of impropriety, Rent-a-Judge/Mediator
You state you are a retired/senior judge who wants to remain eligible for recall to judicial service.
You have received an invitation from a private corporation to provide private adjudication services (rent-a-judge). You believe you will be an independent contractor. The corporation will charge your fees and pay you an hourly fee. The directors of the corporation consist of one businessman, one attorney who practices law and one attorney who does not practice law but devotes full time to the corporation. You have inquired whether this arrangement would create a Code of Judicial Conduct problem that would prevent you from being recalled to judicial service.
Further, you have inquired whether you would violate the Code if you provided mediation services through the office of a practicing attorney who would schedule mediation sessions, collect fees and make payments for service to you.
Finally you ask whether you could provide mediation services through an attorney who does not practice law but operates out of an office where other attorneys do practice law.
The compliance section of the Code states:
A retired judge who is subject to recall shall not practice law and shall refrain from accepting any assignment in any case in which his present financial business dealings, investments, or other extra-judicial activities might be directly or indirectly affected. The purpose of this admonition is to ensure that his impartiality is not subject to question.
Nine members of the Committee agree that you may contract with a private corporation to provide private adjudication services and to serve as a mediator. However, you must avoid any appearance of impropriety. This is consistent with our prior opinions (91-24 and 85-3) on the subject.
Associations with a practicing attorney can have many forms from a simple sharing of a copy machine to sharing of fees. Some associations may have an appearance of impropriety and some may not. Therefore, the majority of the Committee believes there may be an appearance of impropriety if you associate with a practicing attorney who sets your calendar and collects your fees.
Two Committee members have noted that in some areas of the state there is intense competition among many mediators for appointment or selection. In one circuit there have been charges that mediation appointments have been made on the basis of favoritism. In other circuits there have been allegations of "price cutting", advertising and very active solicitation for mediation business.
Therefore, one committee member opined that it may be inconsistent for a retired judge competing for mediation business to be on the bench occasionally making decisions in cases involving lawyers from whom he or she may be seeking mediation business. This Committee member believes there is an appearance of impropriety for a retired (senior) judge to work as both a mediator and as an active judge.
One Committee member advises that the Florida Supreme Court sets all policies, procedures and rules regarding the recall of retired/senior judges to judicial service and the State Courts Administrator's Office may have information for your guidance on the subject of your inquiry.
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,
Harvey Goldstein, Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Participating members: Judges Tolton, Green, Booth, Levy, Dell, Doughtie, Goldstein, Farina, Rushing and Clarke, Esq.
Office of State Court Administrator, Legal Affairs &Education