FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-05
Date of Issue: February 4, 2019

ISSUE

May a senior judge who will be associated with an entity that is solely engaged in offering mediation or other alternative dispute resolution services and that is not otherwise engaged in the practice of law publish a professional announcement in the Florida Bar News or the local bar association’s magazine announcing the inquiring judge’s availability to mediate through a newly formed entity?

ANSWER: No.

FACTS

The inquiring judge recently retired from active service as a circuit judge and has been approved to serve as a senior judge. The inquiring judge is currently training to become a certified circuit civil mediator and plans to join the judge’s spouse in establishing an entity that is solely engaged in offering mediation or other alternative dispute resolution services and that is not otherwise engaged in the practice of law. The inquiring judge does not plan to mediate and serve as a senior judge in the same circuit. The inquiring judge inquires whether a professional announcement may be published in the Florida Bar News or the local bar association’s magazine whenever the retired judge completes the mediation certification training announcing the retired judge’s availability to mediate through the newly formed entity.

 

DISCUSSION

Senior judges subject to recall must comply with all provisions of the Code of Judicial Conduct, with limited exceptions. See Fla. Code Jud. Conduct, Application (stating that a senior judge “shall comply with all the provisions of this Code except Sections 5C(2), 5E, 5F(1), and 6A”); Fla. JEAC Op. 06-02, Fla. JEAC Op. 16-22.

Although senior judges are expressly exempt from compliance with Canon 5F(1), they are required to comply with Canon 5F(2). Canon 5F(2) provides, in pertinent part:

A senior judge may serve as a mediator in a case in a circuit in which the senior judge is not presiding as a judge only if the senior judge is certified pursuant to rule 10.100, Florida Rules for Certified and Court-Appointed Mediators. Such senior judge may be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services but that are not otherwise engaged in the practice of law. However, such senior judge may not advertise, solicit business, associate with a law firm, or participate in any other activity that directly or indirectly promotes his or her mediation, arbitration, or voluntary trial resolution services and shall not permit an entity with which the senior judge associates to do so.

Fla. Code Jud. Conduct Canon 5F(2) (emphasis added).

In Fla. JEAC Op. 11-11, the Committee advised that the Florida Supreme Court by expressly authorizing senior judges to be affiliated with entities such as the aforementioned mediation group and, by doing so, implicitly authorized senior judges to permit such an entity to disclose the name (and image and biographical information) of such senior judge in its advertising and on its website. However, in that opinion, the Committee noted:

[A] senior judge may not permit the mediation services entity, when referencing the senior judge, to 1) use the title “judge;” 2) disclose the judge’s senior judge status; or 3) use a photograph of the senior judge in a judicial robe. To do so would lend the prestige of the judicial office to advance the private interests of the mediation services entity. See Canon 2B.

The Florida Supreme Court overruled our opinion. See In Re: Amendments to the Code of Judicial Conduct, 141 So. 3d 1172 (Fla. 2014).

In its opinion, the Court amended Canon 5F(2) to “alleviate any concern that serving as a senior judge could be seen as inappropriately creating an advantage in obtaining mediation business for the senior judge or any mediation group with which the senior judge associates.” 141 So. 3d at 1173-1174. The Court added additional advertising restrictions which “requires a senior judge to ensure that entities that provide mediation services with which the senior judge associates as a mediator abide by the same prohibitions on advertising or promoting the senior judge’s mediation service as are imposed on the senior judge.” 141 So. 3d at 1174.

Here, the inquiring senior judge contemplates establishing an entity with the judge’s spouse that is solely engaged in offering mediation or other alternative dispute resolution services and that is not otherwise engaged in the practice of law. Consistent with the 2014 amendment to Canon 5F(2), the inquiring judge by or through the newly established mediation entity may “not advertise, solicit business, associate with a law firm, or participate in any other activity that directly or indirectly promotes his or her mediation, arbitration, or voluntary trial resolution services.” This prohibition would include the professional announcements described herein.

 

REFERENCES

In Re: Amendments to the Code of Judicial Conduct, 141 So. 3d 1172 (Fla. 2014).

Fla. Code Jud. Conduct, Canon 5F(2)

Fla. Code Jud. Conduct, Application

Fla. JEAC Ops. 16-22, 11-11, 06-02

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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 James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael 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 Jeffrey Kuntz, Judge Matthew C. Lucas, 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