FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2009-10
Date of Issue: May 22, 2009

ISSUE

Whether a senior judge may preside over the trial of a civil case when the senior judge currently is providing mediation services in the same circuit in the same type of cases, the senior judge has not previously provided mediation services to the attorneys or parties involved in the trial, and the attorneys and parties on both sides of the case have requested that the senior judge preside over the trial. 

ANSWER: No.

FACTS

The inquiring senior judge retired from the circuit court bench.  The senior judge has since been certified as a mediator and provides mediation services in civil cases in the circuit where the judge was formerly active.

The senior judge’s successor has recently advised the senior judge that the attorneys in a civil case over which the judge presided as an active judge have inquired as to whether the judge may preside over the trial of that case, if the attorneys and their clients consent. 

The senior judge represents that no mediation services have been provided to any of the attorneys or parties involved in that case. 

DISCUSSION

Canon 5F(2) provides, in pertinent part:
“A senior judge who provides mediation services shall not preside over the same type of case the judge mediates in the circuit where the mediation services are provided; however, a senior judge may preside over other types of cases (e.g., criminal, juvenile, family law, probate) in the same circuit and may preside over cases in circuits in which the judge does not provide mediation services.”  Fla. Code Jud. Conduct Canon 5F(2). 

The Commentary to Canon 5F(2) provides that the stated purpose “is to ensure that the senior judge’s impartiality is not subject to question” and “to prohibit a senior judge from soliciting lawyers to use his or her mediation services when those lawyers are or may be before the judge in proceedings where the senior judge is acting in a judicial capacity.” Commentary, Fla. Code Jud. Conduct Canon 5F(2).

The inquiring senior judge informs the Committee that the civil cases for which the senior judge provides mediation services are the same type as the civil trial. See Florida Judicial Ethics Advisory Opinion 94-48 (opining that personal injury cases are not the same “type” of case as a partnership dissolution case).  Accordingly, presiding over the trial would be a violation of Canon 5F(2), and the only remaining question is whether the consent of the parties permits the otherwise prohibited activity.

The Committee is of the opinion that the restrictions regarding geography and subject matter set forth in Canon 5F(2) may not be waived by consent. 

Whether and to what extent senior judges may serve in quasi judicial roles has been the subject of review by the Supreme Court of Florida and resulting changes to the Code of Judicial Conduct, as well as multiple inquiries presented to this Committee over the past three decades.1

   

In 2005, the Supreme Court of Florida considered an Amended Final Report on Senior Judges as Mediators filed by the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy (“ADR Committee”), and adopted the most recent substantive changes to the pertinent provisions of the Code of Judicial Conduct.  In re: Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators, 915 So. 2d 145 (Fla. 2005).  In its opinion, the Supreme Court expressly rejected the ADR Committee’s recommendation to remove geographic and subject matter restrictions.  In so doing, the Supreme Court stated “we believe potential conflicts of interest and the appearance of impropriety are more likely to arise when a senior judge presides over the same type of cases in court and in mediation in the same geographic area” and the “potential is sufficient to warrant continuation of some geographic and subject-matter restrictions.”  Id. at 152. 

As a result of the Supreme Court’s review, the geographic and subject matter restrictions formerly found in the Commentary to the section called “Application of the Code of Judicial Conduct” are now found in Canon 5F(2).  Identical language was also included in a newly created subsection (e) of Rule 10.340 of the Florida Rules for Certified and Court-Appointed Mediators.  Id. at 150, 152.

Although not entirely clear from the Court’s 2005 opinion, it appears that the ADR Committee had recommended as to both a potential numerical restriction on mediations performed by senior judges, as well as  geographic and subject matter restrictions, that “the better way to address concerns about potential conflicts is to expressly require disclosure and recusal on a case-by-case basis.”  See In re: Report, 915 So. 2d at 151.  Nevertheless, the version of Canon 5F(2) adopted contains only one provision allowing for consent by the parties: 

Absent express consent of all parties, a senior judge is prohibited from presiding over any case involving any party, attorney, or law firm that is utilizing or has utilized the judge as a mediator within the previous three years.” (Emphasis added.)

The Committee is of the opinion that a plain reading of  Canon 5F(2) in its entirety, as well as a review of the Supreme Court’s opinion in In re: Report, makes clear that the provision allowing for consent of the parties applies solely to the three year prohibition.  Fla. Code Jud. Conduct Canon 5F(2);  In re: Report, at 151-152. 
 
Further, even under the circumstances of a waiver by the parties, at least one concern identified by the Supreme Court -- the potential that a senior judge may solicit lawyers to use his or her mediation services when those lawyers are before the judge -- still exists. 

Accordingly, the Committee is of the opinion that regardless of the parties’ consent, the senior judge should not preside over the civil trial.

REFERENCES

In re: Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators, 915 So. 2d 145 (Fla. 2005); In re: Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994);  

Florida Rules for Certified and Court-Appointed Mediators 10.430(e).
Code of Judicial Conduct: Canons 1, 2, 3F, 4, 5, 5F(2), Commentary to Canon 5F(2), and former Commentary to the Application of the Code of Judicial Conduct, Section B.
Florida Judicial Ethics Advisory Committee Opinions: 85-03; 92-30; 93-03; 93-06; 94-48; 99-16; 07-12.

_____________

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 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. See 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. See Id.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Judge C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 101 N. Alabama Avenue, Suite 437, Deland, FL 32724.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge Jose Rodriguez, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
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)

1. See In re: Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators, 915 So. 2d 145 (Fla. 2005); In re: Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994); Florida Judicial Ethics Advisory Committee Opinions 07-12; 99-16; 94-48; 93-06; 93-03; 92-30; 85-03.
 
Potential areas of concern identified include:  Canon 1 (judges must uphold the integrity and independence of the judiciary), Canon 2 (judges must avoid the appearance of impropriety), Canon 4 (judges’ quasi-judicial activities must not cast doubt on their impartiality), and Canon 5 (judges must regulate their extrajudicial activities and financial affairs to minimize the risk of conflict with their judicial duties).  In re: Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators, 915 So. 2d 145, 147 (Fla. 2005).