FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-18
Date of Issue: December 21, 2005

ISSUES

1. May a retired judge, not subject to recall, be self represented in an appeal to a district court of appeal or in a motion hearing in the trial court?

ANSWER: Yes.

2. May a retired judge, not subject to recall, give legal advice to the judge’s spouse regarding the spouse’s appeal or for a motion hearing pending in the trial court?

ANSWER: Yes.

3. May a retired judge, not subject to recall, represent the judge’s spouse in the spouse’s appeal or in a motion hearing pending in the trial court?

ANSWER: Yes.

FACTS

The inquiring judge resigned from the county bench many years ago and sat part-time as a retired judge thereafter. The judge has not worked as a retired judge for several years. The judge is not on the senior judge list, and is not subject to recall for judicial service. The judge is a member in good standing with the Florida Bar.

The judge and the judge’s spouse were plaintiffs in litigation concerning bodily injuries received by the judge’s spouse. The plaintiffs were represented by counsel at the trial level. The case is now on appeal. The judge has concerns regarding the judge’s ability to represent the parties in an appellate court and on a motion pending in the trial court.

DISCUSSION

The Application Section of the Code of Judicial Conduct provides that retired judges who have complied with procedures established by the Supreme Court of Florida so as to be eligible for recall for judicial service shall comply with all provisions of the Code, except for limited exceptions, none of which is involved with this inquiry. Canon 5G, Code of Judicial Conduct, provides as follows:

G. Practice of Law. A Judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family.

The application section of the Code confirms this prohibition of the practice of law by retired/senior judges by stating, “A retired judge who is subject to recall shall not practice law . . . .”

The Application Section of the Code further provides that a retired judge who does not desire to be assigned to judicial service may engage in the practice of law and be entitled to all the rights of an attorney at law. Since the inquiring judge is not subject to recall, the judge is entitled to practice law and is no longer subject to the Code of Judicial Conduct. This inquiry is similar to the inquiry in Florida JEAC Op. 01-04, wherein this Committee advised a judge that the judge was not subject to the Code and may practice law because the judge did not desire to be assigned judicial service and formally communicated this to the Supreme Court.

If the inquiring judge desires to be subject to recall, and subject to the Code of Judicial Conduct, the judge should comply with Rule 2.030, Florida Rules of Judicial Administration, which provides that a judge may be eligible for recall to judicial service upon the cessation of the private practice of law and approval of the judge’s application to the Supreme Court.

REFERENCES

Canon 5G, Code of Judicial Conduct

Application Section, Code of Judicial Conduct

Rule 2.030, Fla. R. Jud. Admin.

Fla. JEAC Op. 01-04

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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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Marjorie Gadarian Graham, Esq., Chair, Judicial Ethics Advisory Committee, 11211 Prosperity Farms Road, Oakpark, Suite D129, Palm Beach Gardens, Florida 33410.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


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