Opinion Number: 98-23
Date of Issue: September 28, 1998
WHETHER A TRAFFIC HEARING OFFICER'S ASSOCIATE ATTORNEY MAY
REPRESENT DEFENDANTS CHARGED WITH DRIVING UNDER THE INFLUENCE
OF ALCOHOL?
Whether an associate attorney, employed by a Traffic Hearing
Officer, may represent defendants charged with driving under the
influence of alcohol?
ANSWER: NO.
The inquiring Traffic Hearing Officer states she has recently
hired an associate. Her associate has been practicing in the area
of criminal defense, including driving under the influence cases.
The associate would like to continue to handle these matters.
The Traffic Hearing Officer asks whether the associate's representation
of criminal driving under the influence cases would constitute
a violation of the Code of Judicial Conduct.
Fla. R. Traf. Ct. 6.630(i) states: Code of Judicial Conduct.
All traffic hearing officers shall be subject to the Code of Judicial
Conduct in the same manner as part-time judges, except that they
shall be exempt from Canon 6B and C and the first portion of provision
A(2) of the compliance section of the code, which prohibits a
part-time judge from practicing in the court on which the judge
serves or in any court subject to the appellate jurisdiction of
the court on which the judge serves. Whether full-time or part-time,
traffic hearing officers shall be prohibited from representing
clients or practicing before any official in any county court
traffic matter or from representing any client appealing any county
court traffic decision.
The Committee has previously found that a part-time Traffic Magistrate could
not represent defendants charged with driving under the influence. Opinion
92-48. The Committee was asked to re-examine this opinion, in Opinion
93-26. All nine participating Committee members found Florida Traffic Rule
6.630(i) clearly prohibited traffic magistrates from practicing as attorneys
in the criminal traffic court. In Opinion 90-26, the Committee was asked about the
effect of the appointment as traffic magistrate on a partner in the magistrate's
law firm. The inquiring magistrate asked if the law partner would be permitted
to represent clients before other traffic magistrates. A majority of the Committee
advised that any law practice proscribed to the traffic magistrate is proscribed
to the partner. Therefore, in the present situation, an associate of the Traffic
Hearing Officer cannot represent criminal defendants charged with driving under
the influence.
One Committee member did note that "the issue as to whether
the associate may represent criminal defendants charged with DUI
in other circuits is still possibly open to debate/interpretation."
Florida Judicial Ethics Advisory Committee Opinions: 90-26; 92-48;
93-26.
Fla. R. Traf. Ct. 6.630(i).
The Judicial Ethics Advisory 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 by the Committee.
Petition of the Committee on Standards of Conduct Governing
Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the
recommendations of the Judicial Qualification Commission for discipline,
the Florida Supreme Court will consider conduct in accordance
with a Committee opinion as evidence of good faith. Id.
For further information, contact The Honorable Lisa D. Kahn,
Chair, Judicial Ethics Advisory Committee, Moore Justice Center,
2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.
Participating Members: Judges C. Kahn, L. Kahn, Patterson, Rodriquez, Rushing, Smith, Swartz, Tolton.
Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C
Office of the State Courts Administrator (Name of inquiring judge
deleted from this copy)