(OPINION 94-46

(Presiding Over
(Unlicensed Practice of Law;
(Pro Se Advice/Procedures

December 16, 1994

Re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated August 19, 1994
And October 14, 1994

You inquire whether a judge in the Family Law Division would violate the Canons by presiding over cases which you "know or have reason to believe" are the product of the unlicensed practice of law, in that the pro se litigants are receiving legal advice and services from nonlawyers. Your second inquiry concerns the degree of legal assistance a judge should give pro se litigants under these circumstances in the courtroom.

Generally, without addressing any legal questions or remedies, the Committee believes that both the inherent power of the judiciary to control the courtroom and the Canons authorize appropriate inquiry into the license status of any purported "lawyer" appearing before the court. If found not to be duly licensed, a judge would have several legal sanctions available. Additionally, pursuant to Canon 3 B(3), a judge should "take or initiate appropriate disciplinary measures" for any unprofessional conduct in his or her courtroom. For example, if a circuit judge observed an attorney not admitted to practice in Florida or disbarred or suspended lawyer practicing law, the judge could assert disciplinary jurisdiction pursuant to Rule 3-3.5 of the Rules Regulating the Florida Bar or report the matter to the Florida Bar as a violation of Rule 3-6.1.

However, the Committee sees no ethical impropriety in a judge presiding over a case where a pro se party may have received advice from a nonlawyer or an attorney not admitted to practice in Florida. If appropriate, at the conclusion of the matter, the judge may refer such cases to the Florida Bar for enforcement of the statutes governing the unlicensed practice of law.

As to your second question, the Committee consensus is that although judges may advise pro selitigants regarding procedures, pursuant to Canon 5F a judge should not practice law or provide legal advice.

One member would refer you to Paulson v. Hon. Kerry I. Evander, 10 FLW D546 (5th DCA 3 11-94) wherein the court cited Canons 1 and 2A in issuing a writ prohibiting the trial judge from providing legal counsel and advice to a pro se party in a custody action. That member also noted that the Supreme Court's Family Court Steering Committee is currently seeking solutions and making recommendations to address the issue of pro se litigants and that some jurisdictions are implementing programs that use staff attorneys and instructional classes.

The other issues you raise either do not involve the Canons or do not relate to contemplated judicial conduct.

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 judges, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 327 So.2d 5 (Fla. 1976).

Very truly yours,

Steve Rushing, Chairman
Committee on Standards of Conduct
Governing Judges

CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)

Participating Members: Judges Dell, Doughtie, Farina, Green, Kahn, Patterson, Rushing, Silverman, Taylor, Tolton, and Edwards, Esq.