FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-26
Date of Issue: July 7, 2010

ISSUE

May a full-time general magistrate, hearing family and civil matters exclusively in one county, work on weekends and days off from employment with the state as a certified family mediator in an adjoining county?  (A second question involving the propriety of advertising mediation services is not answered in light of the answer to the primary question.)

ANSWER: No.

FACTS

The inquiring general magistrate is employed in that position full-time and is assigned to hear civil and family matters exclusively in one county of a multi-county circuit.  This magistrate is also certified as a family mediator and proposes to offer, and to advertise, mediation services on weekends and days off from employment with the state in an adjoining county.

DISCUSSION

The un-numbered section of the Code of Judicial Conduct entitled “Application of the Code of Judicial Conduct” provides, inter alia, that anyone who performs judicial functions, including a hearing officer, commissioner, or a general magistrate, shall comply with Canons 1, 2A, and 3, and such other provisions of the Code that might reasonably be applicable.  Therefore, these sections of the Code apply to the inquiring general magistrate.

The question of whether a full-time employee of the judicial branch may have outside employment is a question of law or of contract and is not addressed in the Code.  For the purposes of this inquiry the Committee will assume that the contemplated outside employment would be permitted by any applicable law or contract.  The ethical propriety of specific types of outside employment by quasi-judicial employees of the judiciary has often been discussed in the context of child support hearing officers and traffic magistrates.

JEAC opinions and advice have consistently interpreted the Code to require hearing officers and traffic magistrates to avoid any practice of law that could result in a conflict of roles, thereby causing an erosion of the “public confidence in the integrity and impartiality of the judiciary.” Canon 2A, Fla. JEAC Ops. 97-23, 2000-38. In this context, we have also emphasized that no opinion has ever suggested that a part-time traffic magistrate may not practice law at all in the same circuit where the magistrate presides. Fla. JEAC Op. 00-35.

In Fla. JEAC Op. 07-01 the committee concluded that a part-time traffic hearing officer could ethically work as an independent contractor for a law firm that handled traffic infraction matters, traffic appeals, and criminal traffic cases, if the contract work did not pertain to these subjects and the hearing officer was disqualified from any cases in which the law firm was involved.

In Fla. JEAC Op. 06-03, the committee concluded that a part-time child support hearing officer could properly represent indigent prisoners who had filed post-conviction relief motions in the same circuit.  However, such a hearing officer could not practice probate, guardianship, or mental health law in the same circuit, since these fields of law often overlap with family law.  Fla. JEAC Ops. 02-06, 02-03, 00-32, 98-12 and 95-08. Other opinions have given similar advice where the child support hearing officer’s private law practice did not include practice in fields of law that could overlap with the duties of a hearing officer. Fla. JEAC Ops. 02-21 and 02-06.

In Fla. JEAC Op. 98-22 a chief judge proposed to hire the same lawyer to serve as a part-time, court-employed child support hearing officer and part-time, court-employed family mediator. Since both positions were paid through the court system, i.e., the lawyer received no private compensation, the committee concluded that the employment arrangement was not prohibited by the Code, as long as the hearing officer avoided conflict by not mediating cases which could come before the hearing officer, and vice versa.

This appears to be the first time the JEAC has been asked to advise a full-time general magistrate on the ethical propriety of practicing private law or mediation while serving as general magistrate. There is nothing in the Code that suggests general magistrates have ethical rules different from hearing officer and traffic magistrate rules.

Applying these principles from prior opinions to the present inquiry, it appears that combining the roles of a civil/family general magistrate and a private certified family mediator in one individual creates the specific conflict  proscribed by the Code. Family magistrate work and family mediation involve the same field of law; combining the two roles in one person could cause an erosion of the public’s confidence in the integrity and impartiality of the general master, in violation of Canon 2A.  Attempting to avoid the conflict by crossing an adjoining county line to offer the conflicting service is not a realistic remedy.  Fla. JEAC Op. 06-03. We advise the inquiring general magistrate not to offer family mediation services as proposed.

REFERENCES

Fla. Code Jud. Conduct, Canons 1, 2A, and 3

Fla. JEAC Ops. 07-01, 06-03, 02-21, 02-06, 02-03, 00-38, 00-35, 00-32, 98-22, 98-12, 97-23, 95-08

_____________

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 Kerry I. Evander, Chair, Judicial Ethics Advisory Committee, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida  32114-5002.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge José Rodriguez, 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)