FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-06
Date of Issue: March 19, 2018

ISSUES

May a part-time civil traffic infraction hearing officer be designated “of counsel” to a firm that represents clients in traffic cases in the same county where the hearing officer presides?

ANSWER: No.

FACTS

The adult child of a part-time civil traffic infraction hearing officer is forming a law firm in the same county where the hearing officer presides. The hearing officer has inquired whether he/she may be designated “of counsel” to his/her child’s firm if his/her child accepts representation of clients on traffic cases in the county in which the hearing officer presides. The inquiring hearing officer suggests that he/she will have no financial interest in the firm of the hearing officer’s adult child and will not receive any compensation for being “of counsel” to the firm.

 

DISCUSSION

The preamble to the Code of Judicial Conduct provides that the Application section of the code is authoritative. Section A(2) provides that a civil traffic infraction hearing officer “should not practice law in the civil or criminal traffic court in any county in which the civil traffic infraction hearing officer presides.” This Committee has previously advised that a part time civil traffic infraction hearing officer may continue to practice law in the same circuit where the hearing officer presides as long as the practice does not include traffic matters and appeals of traffic matters. See Fla. JEAC Op. 00-35.

The Florida Bar Ethics Department has addressed the term “of counsel” as follows:

The term “of counsel” has no distinct legal definition. Law firms have traditionally used the term as an honorary title bestowed upon a retired or semi-retired firm member. Today the “of counsel” designation is used to identify an attorney who, on a regular and continuing basis, performs legal services for firm clients in a capacity other than that of partner, shareholder or associate.

Before forming an “of counsel” relationship, a firm should consider the fact that the “of counsel” lawyer is treated as a firm member for conflict of interest analysis. Pursuant to Rule 4-1.10(a) of the Rules of Professional Conduct, while lawyers are associated in a firm, none of them may knowingly represent a client when any one of them practicing alone would be prohibited from doing so by other conflict of interest rules, including Rules 4-1.7, 4-1.8(c), and 4-1.9. Because an “of counsel” lawyer is treated as a member of the firm, conflicts will be imputed to and from a firm’s “of counsel” lawyer. Thus, the firm’s system for checking conflicts of interest must include a check against clients represented by the “of counsel” lawyer outside the firm if the “of counsel” lawyer engages in other practice.

See Ethics information packet “Of Counsel,” The Florida Bar Ethics Department.

It appears clear that for conflict of interest purposes, an “of counsel” lawyer is treated as a firm member. As such, conflicts will be imputed to and from a firm’s “of counsel” lawyer.

In Florida Judicial Ethics Advisory Committee Opinion 98-23, this Committee determined that an associate of a traffic hearing officer cannot represent clients in traffic court. Further, in Florida Judicial Ethics Advisory Committee Opinion 90-26, the Committee determined that any law practice prescribed to a hearing officer is prescribed to the partner as well. As such, this Committee has consistently held that members of a traffic hearing officer’s firm cannot represent clients in traffic court in any county in which the civil traffic infraction hearing officer presides.

As the Application section of the Code of Judicial Conduct does not allow a civil traffic infraction hearing officer to practice law in the civil or criminal traffic court in any county in which the civil traffic infraction hearing officer presides, the same prohibition would apply to the attorneys in a firm in which the hearing officer is designated “of counsel.”

It should be noted that in Florida Judicial Ethics Advisory Committee Opinion 07-01, the Committee determined that a part-time traffic magistrate could work as an independent contractor with a law firm as long as the traffic magistrate disqualified himself/herself in any case involving the law firm. This opinion did not address whether the law firm that the hearing officer subcontracted with could handle traffic cases, but focused on circumstances where the magistrate should disqualify himself or herself due to the appearance of partiality or economic interest. It is unclear whether an independent contractor attorney is classified by the Florida Bar as “of counsel.” To the extent an independent contractor attorney is not considered as “of counsel,” Florida Judicial Ethics Advisory Committee Opinion 07-01 is distinguishable upon its facts. To the extent the present opinion conflicts with Florida Judicial Ethics Advisory Committee Opinion, that opinion is superseded.

The Florida Bar’s position on the designation as “of counsel” clearly provides that such an attorney is treated as a firm member for conflict of interest analysis. Consequently, a traffic hearing officer should not be designated “of counsel” to a firm that represents clients in traffic cases in the same county where the hearing officer presides.

 

REFERENCES

Preamble to Code of Judicial Conduct, Application Section
Fla. JEAC Ops. 00-35, 98-23, 90-26, 07-01
Florida Bar Ethics Department, Ethics information packet
Fla. Rules of Professional Conduct 4-1.10(a), 4-1.7, 4-1.8(c), 4-1.9

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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 a judge or judicial candidate.

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

For further information, contact Judge Miguel de la O, Chair, Judicial Ethics Advisory Committee, Eleventh Circuit, Miami-Dade County Courthouse, 73 W. Flagler Street, Room 1407, Miami, FL 33130.

Participating Members:
Judge Michael F. Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge Michael Raiden and Charles Reynolds, Esquire.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator