Note: Opinion 2010-25 recedes from this opinion
August 14, 1996
Appointment of father as mediator
and stock ownership
Re: Committee on Standards of Conduct Governing Judges
Your inquiry dated June 4, 1996
You have two inquiries. The first concerns whether you can appoint you father, a retired District Court Judge and certified mediator, as a mediator when the parties request your father's services. You state that most civil cases in your circuit are referred to mandatory mediation. You only appoint a mediator when the parties cannot agree on a mediator. In such instances, you never appoint your father. However, when the parties do agree on a mediator, you still have to enter an agree mediation order. You state that there are times when the parties, by agreement, wish to use your father as mediator.
In Opinion 89-21 we stated that it is improper
for a judge to refer mediation cases to his father. However, that opinion did
not deal specifically with the same facts as your inquiry. All nine responding
members are of the opinion that if it is the parties who are requesting the
mediation services of your father and they are willing to waive conflict, no
Canons will be violated. However, this waiver should be put in writing and be
signed by both the attorneys and the parties themselves. Further, one of the
nine responding nine members recommends "that another judge sign all orders
where [your] father served as mediator to avoid any appearance of conflict in
where the 'agreed' settlement is contested."
Your second inquiry concerns your ownership of stock in various publicly traded corporations, including various banks such as SunTrust and Barnett, doing business in Florida. You state that you own relatively small amounts of stock in these corporations and they do not represent a significant portion of your investments or a significant portion of the outstanding stock in these corporations. You disclose your holdings in the financial disclosures filed each year.
You note that some of these corporations, particularly banks, file action that come before you. Generally, these are mortgage foreclosure cases. You ask whether you must disqualify yourself in these cases, divest yourself of the stock or advise the parties of your stock ownership. If you are to advise the parties of your stock ownership, you ask how this should be done and not that in many cases there is no written or other contact with the adverse parties. You stat that it is your opinion that none of the cases, if decided adversely to the corporation, would have a material adverse affect on the financial condition of either the corporation or your investment.
Canon 5D(1) states that a judge cannot engage in business and financial dealings that could reasonably be perceived to exploit the judge's position or "involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves." Canon 5D(20 allow a judge to hold and manage investments belonging to the judge or member of his family.
Subsection 4 of Canon 5D mandates that a judge "shall manage the judge's investments and other financial interest to minimize the number of cases in which the judges is disqualified." It further provides that a judge is to divest himself of such investments or other financial )sic) that might require frequent disqualification. Canon 3E(1)(c) provides that a judge should disqualify himself where
The judge knows that he or she individually or as a fiduciary or the
judge's spouse, parent, or child wherever residing, or any other member
of the judge's family residing in the judge's household has an economic
interest in the subject matter in controversy or in a party to the proceeding
or has any other more than de minimis interest that could be substantial
(sic) affected by the proceeding.
Seven of the nine responding members believe you should advise the parties of your stock ownership in cases where a corporation in which you own stock is a party. The parties can then agree to waive the disqualification under Canon 3F and you need not recuse yourself. However, the question is complicated in cases where the adverse party makes no appearance in the case. In such cases, seven responding Committee members think the best course may be for you to recuse yourself. It is unknown from the inquiry how many cases assigned to you would be affected. If the number is large, you might want to consider divesting yourself of the stock in order to minimize the number of cases in which you have to recuse yourself. Two of the nine responding members agree:
As to the second inquiry, I would find that in the types of general cases [you are] referring to, those being mortgage foreclosure actions, that no disclosure or disqualification is required because of the de minimis exception of Canon 3E(1)(c). I would note, however, that there are proceedings in which the value of the stock could be substantially affected, even though the judge may only have a de minimis interest in the corporation. If the case is of this nature, then I believe [you] should recuse [yourself].
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 So.2d 5 (Fla.1976).
Oliver L. Green, Jr.
Chairman, Committee on Standards of Conduct Governing Judges