Opinion Number: 99-1
Date of Issue: January 11, 1999
WHETHER A GENERAL MASTER MAY HANDLE ADOPTIONS AS A VOLUNTEER ATTORNEY
FOR THE DEPARTMENT OF CHILDREN AND FAMILIES?
Whether a General Master may volunteer to appear in Court on behalf of
the Department of Children and Families, in adoption cases?
The inquiring general master wishes to volunteer to handle adoptions
in juvenile court, on behalf of the Department of Children and Families.
He is concerned over the backlog of adoption cases that have resulted from
Chapter 39 Termination of Parental Rights proceedings in juvenile court,
and wishes to volunteer to handle these adoptions. The general master would
not be involved in a case until after parental rights had been terminated.
The general master is concerned that he may be in violation of Canon 5G
which prohibits a judge from practicing law.
The "Application of the Code of Judicial Conduct" states that the Code is applicable to general masters and that while performing judicial functions, they must conform with Canons 1, 2A, and 3 and such other provisions of this Code that might reasonably be applicable depending on the nature of the judicial function performed.
The Committee found in Opinion 95-8 that a part-time child support hearing officer was not permitted to practice law in the court in which the hearing officer presided. The Committee was concerned that the substitute hearing officer could be placed in a position of presiding over cases as a hearing officer where attorneys appear before the hearing officer, and then may be an adversary against the same attorneys in separate cases.
The Committee would also direct attention to Opinion 96-12, wherein the Committee found that a part-time General Master/Support Enforcement Hearing Officer could not practice family law, even if no appearances were required before another General Master, Hearing Officer or Circuit Judge. The Committee found that part-time child support hearing officers should not practice law in the same court or forum in which they preside, because the conflicts of interest discussed in Opinion 95-8 could still arise. See also Opinion 98-12, where the Committee found that a part-time child support enforcement officer should not practice family law within the circuit even though the county he wanted to practice in was not one in which the hearing officer regularly held hearings.
The common thread binding the previous Opinions is the concern that general master/hearing officers should not appear in an adversarial role, and then switch hats and appear in a judicial role. However, an adoption after a termination of parental rights is not an adversarial proceeding. Therefore, seven of the eight responding Committee members believe that a general master may volunteer to handle adoptions after parental rights have been terminated.
The Committee, however, is not addressing whether under the terms of the general master's employment with his or her circuit, the general master could take time to handle these cases.
One of the responding members of the Committee did disagree with the majority. The member states:
"I don't presently believe that a full-time general master should represent a state agency in adoption cases. I understand that the inquiry does not relate whether the inquiring general master is full-time or part-time, but I note that he apparently has official letterhead emblazoned with his circuit's name and seal. As such, I would view him as an official of the circuit, acting in a quasi-judicial capacity. I continue to believe that a full-time adjudicatory officer should not practice law."
Florida Code of Judicial Conduct, Application of the Code, Canon 1,2A, 3 and 5G.
Florida Judicial Ethics Advisory Committee Opinions: 95-8;
96-12; and 98-12.
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, Tolton, and Attorney Blanton
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)