FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-17
Date of Issue: June 16, 2010

ISSUES

May a Traffic Hearing Officer contribute the annual fee of $350.00 to the local Legal Aid Society in lieu of performing pro bono legal service hours?

ANSWER: Yes, unless the local Legal Aid Society engages in litigation or represents impoverished people in proceedings before the THO.

May a Traffic Hearing Officer perform pro bono legal service hours for the local Legal Aid Society?

ANSWER: Yes, as long as the legal service hours do not include areas of law in civil or criminal traffic court.

FACTS

The inquiring traffic hearing officer (“THO”) wishes to contribute $350.00 to a local Legal Aid Society in lieu of performing mandatory (according to the inquiry) pro bono legal service hours. The THO is asking if paying the annual fee of $350.00 to the local Legal Aid Society in lieu of performing pro bono legal service hours is permitted under Florida’s Code of Judicial Conduct.  If this practice is prohibited, the THO asks whether there is any prohibition in the Code that prevents a THO from performing the pro bono legal service hours for the Legal Aid Society?

DISCUSSION

As reflected in previous JEAC opinions, Florida’s Code of Judicial Conduct applies to THOs.  See Fla. JEAC Ops. 08-08 and 07-01.  The Application of the Code of Judicial Conduct specifies that “[a]nyone, whether or not a lawyer, who performs judicial functions, including but not limited to a civil traffic infraction hearing officer, . . . shall, while performing judicial functions, 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.”  (emphasis supplied).

In JEAC Op. 86-16, the Committee opined that the propriety of a judge’s service as a member of the board of directors or as trustee of a local bar association’s Legal Aid Society will depend upon the services the organization offers. See  JEAC Op. 86-16.  The Committee therein noted it had concluded in a prior opinion (Op. 74-17) “that because the legal aid society in which the inquiring judge served as a director provided legal services for indigents that such service would be prohibited by Canons 2, 4 and 5B(1)1.”  Op. 86-16  The Committee advised the inquiring judge that “if the Legal Aid Society engages in litigation directly or represents impoverished people through the use of staff counsel, [the judge’s] continued service on the Board would be prohibited by Canon 5B(1).”  Op. 86-16.

Thus, unless the THO’s local Legal Aid Society engages in litigation directly or has staff counsel that represents impoverished people in proceedings before the THO or in civil or criminal traffic court in any county in which the THO presides, then Florida’s Code of Judicial Conduct does not prohibit a contribution by the THO.  However, if the local Legal Aid Society does engage in litigation directly or represents impoverished people in proceedings before the THO or in civil or criminal traffic court in any county in which the THO presides, then contributing those funds would be in violation of Canon 2A.

Canon 2A says, in part, “a judge . . . shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  The Commentary to Canon 2A explains that “[a] judge must avoid all impropriety and appearance of impropriety.”  According to the Commentary, “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.”  Since the THO is a quasi-judicial officer, the THO’s contribution of monies to the local Legal Aid Society in lieu of performing the pro bono hours may convey the appearance of partiality by the THO with the attorneys in that organization, if the Legal Aid Society represents people in proceedings before the THO or in civil or criminal traffic court in any county in which the THO presides.  See JEAC Op. 74-17 and JEAC Op. 00-25.  Thus, Canon 2A prohibits the THO’s contribution of monies to the local Legal Aid Society if the organization engages in such litigation.  Although burdensome to an ordinary citizen, a judge must freely and willingly accept restrictions on the judge’s conduct.  Commentary, Canon 2A.

Alternatively, the THO asks that if paying the $350.00 annual bar fee is not permitted by the Code, whether there would be any prohibition against performing the pro bono legal service hours in lieu of paying the fee.  Since a THO is performing part-time quasi-judicial functions, the THO is in the unique position to continue practicing law in areas that do not conflict with the Code.  The Committee has consistently observed that “traffic magistrates are prohibited from practicing law in the civil or criminal traffic court in any county in which the magistrate presides.”  See JEAC Op. 92-48; JEAC Op. 93-26; and JEAC Op. 00-38.  Thus, accordingly, so long as the legal services provided on a pro bono basis are in areas of the law outside civil and criminal traffic court, nothing in the Code of Judicial Conduct precludes this activity by a THO. 

This conclusion is also consistent with the provisions of Fla. Stat. § 318.36, Code of Ethics, which provides, “Hearing officers shall be subject to The Florida Bar Code of Professional Responsibility and not the Judicial Code of Ethics, except that they shall avoid practices or occupations that would constitute a conflict of interest or give the appearance of impropriety.” (emphasis supplied).

In conclusion, unless the THO’s local Legal Aid Society engages in litigation or has staff counsel represent impoverished people on matters that come before THO or in the civil or criminal traffic court in any county in which the THO presides, then Florida’s Code of Judicial Conduct does not prohibit such contributions.  However, the THO will be in violation of Canon 2A should the local Legal Aid Society be involved in such litigation or representation.  Furthermore, the THO is not prohibited from performing mandatory pro bono legal services with the local Legal Aid Society so long as it is performed in areas of the law that do not specifically conflict with the Code and previous JEAC opinions. 

REFERENCES

Florida Statutes § 318.36

Fla. Code Jud. Conduct, Canon 1, 2A, Commentary to Canon 2A, 3, 5C(3) and Application to the Code of Judicial Conduct

Fla. JEAC Ops. 08-08, 07-01, 00-38, 00-25, 93-26, 92-48, 86-16, 74-17

_____________

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 T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

Participating Members:
Judge Roberto Arias, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge C. McFerrin Smith III, Judge Richard R. Townsend, 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. Currently Fla. Code Jud. Conduct 5C(3).