FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-35
Date of Issue: October 25, 2010

ISSUE

Whether it is ethically permissible for a retiring judge to permit the mediation firm that the judge is joining to send out an announcement that the judge is joining the firm while the judge is still a sitting judge?

ANSWER: No.

FACTS

The Inquiring Judge who is retiring on December 31, 2010, will be joining a mediation firm. The Inquiring Judge is not seeking senior judge status. The mediation firm wishes to send out an announcement prior to December 31, 2010, that the Inquiring Judge will be performing mediation services with that firm.

DISCUSSION

Canon 2B of the Florida Code of Judicial Conduct states in part that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”  If the Inquiring Judge permits this announcement to be sent out, the mediation firm’s interest will be advanced in several potential ways. For example, lawyers having cases before the Inquiring Judge may use the mediation firm in their other cases in order to curry favor with the Judge. Litigants and lawyers may be inclined to use the mediation firm while the Inquiring Judge is still a sitting judge because of the Judge’s unique position of still being a judge but having an already established business relationship with the mediation firm. Further, the mediation firm’s announcement that the Inquiring Judge will be joining the firm gives the impression that the firm and its mediators who are lawyers are in a special position to influence the Judge. 

  Although Florida Judicial Ethics Advisory Committee Opinion 2006-10 has a different set of facts than the facts presented herein, the same reasoning applies. The judge in that opinion had been appointed to the bench and his/her former law firm wanted to place a congratulatory announcement in the Florida Bar News, in addition to sending out congratulatory announcements to the law firm’s clients about the judge’s recent appointment to the bench.  The Committee opined that the judge could not assent to his/her former law firm doing either.  The Committee relied on Canon 2B and stated that by permitting the announcement, the inquiring judge would be lending the prestige of his/her ascension to the bench to advance the private interests of the former law firm. In addition, sending the announcement to the law firm’s clients would give the appearance that the former law firm holds a special position of influence over the judge.

   For the reasons set forth herein, the Inquiring Judge should not permit a mediation firm to send out an announcement that the Inquiring Judge is joining the firm while the Inquiring Judge is still a sitting judge.1

REFERENCES

Fla. Code Jud. Conduct, Canon 2B;
Fla. JEAC  Op. 2006-10.

_____________

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, Patricia E. Lowry, Esquire, 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)

1. This opinion is limited solely to the facts presented in the inquiry, i.e., the propriety of a sitting judge permitting a mediation firm to send   announcements prior to the judge’s retirement that the judge will be joining the firm after the judge retires from the bench. The Inquiring/Sitting Judge herein has already made a commitment to join the mediation firm. The Committee is not opining in this opinion as to the propriety of a Sitting Judge entering into a firm commitment or contract to join a law firm or mediation firm while the Inquiring Judge is still a sitting judge.