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?
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)