FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 00-39
Date of Issue: December 14, 2000

ISSUES

MAY A JUDGE-ELECT CONTINUE TO HANDLE CASES IN THE LOCAL TRIAL COURTS BEFORE THE JUDGE-ELECT TAKES THE BENCH?

ANSWER: Yes.

FACTS

The inquiring judge-elect was elected on November 7, 2000, to a county court position. The judge-elect will take the bench in early January 2001, but presently has cases pending in both county and circuit court in the judge- elect's locale. The judge-elect inquires whether there is any limitation on continuing to appear before these local judges between now and January 2001.

DISCUSSION

This Committee recognizes that a judge-elect will, in most instances, be an actively practicing attorney. It would, therefore, be impractical to adopt a rule that would prohibit the newly elected judge from handling any cases between the date of the election and the date of the judge's investiture. In Florida Judicial Ethics Advisory Committee Opinion 74-13, the inquiring attorney wished to know whether he could continue to act as an Assistant State Attorney in trials of cases in the circuit court after his election as circuit judge. This Committee responded, finding "no impropriety in your continuing as assistant state attorney trying cases in the circuit court until you assume the office of circuit judge." Accordingly, the Committee concludes that no outright ethical prohibition exists that would prohibit a newly elected judge from continuing to handle cases during the period between the election and the investiture.

In reaching this conclusion, the Committee distinguishes Opinion 98-25, in which we held that a judge-elect may not actively participate in partisan campaigns before the date of the judge-elect's investiture. In that opinion we reasoned that a judge-elect is no longer a "private citizen", and must, therefore, curtail political involvement accordingly. The Committee was further concerned that a newly elected judge participating in the political arena would lend the prestige of judicial office to advance the private interest of a candidate. In reaching that conclusion, however, we recognized Opinion 74-13, but noted that conduct before taking the bench may be used as a basis for judicial discipline, citing Inquiry Concerning a Judge, P. Kevin Davey, 645 So. 2d 398 (Fla. 1994), and Inquiry Concerning a Judge, Mark A. Speiser, 445 So. 2d 343 (Fla. 1984).

The Committee does not believe, in the present case, that the risk of misusing judicial prestige outweighs the important consideration of allowing a lawyer to effectively and expeditiously conclude those legal matters that have been entrusted to the lawyer who has recently been elected to the bench. The Committee would note, however, that a newly elected judge should devote substantial attention to winding up the law practice, with due regard for the rights and expectations of existing clients.

REFERENCES

Inquiry Concerning a Judge, P. Kevin Davey, 645 So. 2d 398 (Fla. 1994).

Inquiry Concerning a Judge, Mark A. Speiser, 445 So. 2d 343 (Fla. 1984).

Florida Judicial Ethics Advisory Committee Opinions: 98-25, 74-13.
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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 Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850

Participating Members:
Judge Charles J. Kahn, Jr.
Judge Lisa D. Kahn
Judge Phyllis D. Kotey
Judge David Levy
Judge Scott J. Silverman
Judge C. McFerrin Smith, III
Judge Jeffrey D. Swartz
Judge Emerson Thompson
Judge Richard R. Townsend
Marjorie Gadarian Graham

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)