August 23, 1995
PERSONAL AND CONFIDENTIAL
REVISED OPINION 95-26
Senior Judge's advertisement of
mediation services and
association with mediation firm
In re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated June 6, 1995
[Editor's note: The revision appears in paragraph four regarding the number of committee members responding]
You are a retired/senior judge eligible for recall and engaged in mediation. Your questions were prompted by the 1994 revision to the Code of Judicial Conduct; specifically subsection (B) of the section titled "Application of the Code of Judicial Conduct." You asked (1) whether you may be listed in a Martindale-Hubbell Directory relating to people engaged in alternative dispute resolution and (2) whether you may associate with an entity solely engaged in mediation, where the entity actively advertises and solicits business. You anticipate that you (sic) name will be included in the lists of those associated with the entity.
Subsection (B) of the Application of the Code of Judicial Conduct section is as follows:
A retired judge who is subject to recall may serve as a mediator, may place his or her name on the mediator master list maintained by the chief judge, and may be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services but that are not otherwise engaged in the practice of law. However, such judge may in no other way advertise, solicit business, associate with a law firm, or participate in any activity that directly or indirectly promotes his or her mediation services.
As to your first question, the Committee unanimously believes that being listed in the Martindale Hubbell directory runs afoul of the Code if the listing is made at your request or directive. However, you are not in violation if your name is included through no efforts of your own.
Turning to your second question, a majority of seven members of the Committee believe that your association with the entity is permissible. The real question is whether the entity's advertisement and solicitation would result in your being held to have breached the Code. The provision allows a judge to associate with such an entity, but forbids the judge from otherwise advertising or soliciting business either directly or indirectly. Four members of the majority believe (1) if the entity does ore than just list your name as a mediator you may run afoul of the new Code; (2) that you should not be listed as a retired or senior judge and (3) any listing of your name would have to show clearly that you are only available for mediation.
Two members of the Committee believe that your association with a mediation firm that advertises does run afoul of the Code. As stated by one member, "[a]ssociation with a firm that advertises for its group and individual mediator appears, at least, to be advertising or soliciting business indirectly." The other member stated:
While apparently the rule would allow the judge to associate with an "entity", I do not believe he can maintain that association once he knows or reasonably should know that the entity is promoting itself either directly or indirectly by reference to the judge's participation."
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,
Oliver L. Green, Jr., Chairman
Committee on Standards of Conduct
CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)
Participating Members:Judges Dell, Doughtie, Green, Kahn, Patterson, Rushing, Silverman, Tolton and Attorney Cushman