Recognized as overruled by Opinion 97-15.
SUBJECT: Request that the Committee recede from Opinion 96-7,
concerning participation of judges in mediation in order to
fulfil the Supreme Court requirements for Certified Mediator
The inquiring judge wishes to fulfil the requirements of the Florida Supreme Court's Rules for Certified and Court-Appointed Mediators before he leaves the bench. Specifically, he wishes to "conduct two current mediations under the supervision and observation of a certified circuit court mediator." He recognizes that in Opinion 96-7 this Committee found that a sitting judge may not co-mediate cases in order to qualify for certification.
The Committee declines to recede from Opinion 96-7. Canon 5F, as adopted by the Supreme Court, provides that a "judges shall not act as a arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law or court rule." The Committee considers itself bound by the prohibition of Canon 5F. The Committee notes, however, that Canon 5F contemplates an exception where such is expressly authorized by law or court rule. Accordingly, the inquiring judge, and others similarly situated, would be free to seek an amendment to Rule 10.010(c), Florida Rules for Certified and Court-Appointed Mediators, the provision that now requires certification applicants to conduct two mediations under the supervision and observation of a certified mediator and makes no exception for sitting judges. The Committee on Standards of Conduct Governing Judges, however, declines t take any position as to the necessity or propriety of such an amendment.
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).
Dated the 4th day of February, 1997.
Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges
Participation Members: Judges Cardonne, Dell, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Smith, Tolton and Attorney Novicki
cc: All Committee Members
Office of the State Courts Administrator (name of judge deleted from this copy)