FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-14
Date of Issue: April 10, 2019

ISSUES

Whether the inquiring judge has a duty to report an attorney to The Florida Bar in circumstances where representations made to the court by the attorney during a judicial proceeding were known by the inquiring judge to be false.

ANSWER: In the circumstances presented, Canon 3D(2) requires the inquiring judge to report the attorney for misconduct to The Florida Bar..

 

FACTS

A judge has inquired whether there is an ethical obligation under the Code of Judicial Conduct to report an attorney for misconduct to The Florida Bar based on the following facts. The inquiring judge was presiding over probation violation proceedings in which defense counsel, mid-way through a series of hearings, insisted that the client/defendant did not speak or understand English; could not proceed without the assistance of an interpreter; and could not have willfully violated the applicable probationary conditions because the defendant never understood those obligations as a result of the alleged language issue. The inquiring judge knows the lawyer’s representations are false. Specifically, the inquiring judge knows, based on record evidence, that the lawyer’s client/defendant previously acknowledged in open court that the client speaks English well enough to be comfortable conducting court matters in English, the defendant always spoke English with probation officers without apparent difficulty, the client never requested a translator before, and the lawyer knew when making the contrary allegations that the client/defendant speaks and understands English.

The inquiring judge is concerned that the lawyer’s breach of his duty of candor to the tribunal may have been so egregious as to call into question his honesty and trustworthiness as a lawyer.

 

DISCUSSION

The response to this inquiry is governed by Canon 3D(2) of the Code of Judicial Conduct which provides as follows:

A judge who receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar shall take appropriate action.

As this Committee has previously noted: “All Florida judges are, first and foremost, attorneys and members of The Florida Bar. As such, Florida judges, just like every other Florida attorney, have an obligation to maintain the integrity of the legal profession and to report to The Florida Bar any professional misconduct of a fellow attorney.” Fla. JEAC Op. 98-21.

This Committee has also previously stated that before making a report to The Florida Bar, the inquiring judge should “first make a determination as to whether a substantial likelihood exists that the lawyer in question violated the Rules of Professional Conduct.” Fla. JEAC Op. 97-17. The judge is required to reach a “reasoned determination” of whether a lawyer has committed a violation of the Rules Regulating The Florida Bar. Id. Should the judge reach that conclusion, the judge would then be obligated to inform the Bar. Id.1

Essentially, the inquiring judge asks what is the “appropriate action” to be taken in the circumstances presented. Although the Code does not specify what the term “appropriate action” entails in a particular circumstance, the Commentary to Canon 3D guides this Commission’s response:

Appropriate action may include direct communication with the judge or lawyer who has committed the violation, other direct action if available, or reporting the violation to the appropriate authority or other agency. If the conduct is minor, the Canon allows a judge to address the problem solely by direct communication with the offender. A judge having knowledge, however, that another judge has committed a violation of this Code that raises a substantial question as to that other judge’s fitness for office or has knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, is required under this Canon to inform the appropriate authority. While worded differently, this Code provision has the identical purpose as the related Model Code provisions. (Emphasis added.)

Significantly, “[t]he Supreme Court does not view violations of the Bar Rule governing misconduct involving dishonesty, fraud, deceit, or misrepresentation as minor.” The Florida Bar v. Gilbert, 246 So. 3d 196, 203 (Fla.2018).2

The facts indicate that the inquiring judge “has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar,” that such violation is not minor in nature, and that the lawyer’s conduct raises a significant question as to the lawyer’s honesty, integrity, trustworthiness, or fitness for the practice of law. Accordingly, the Committee advises that Canon 3D(2) requires the inquiring judge to report the attorney to The Florida Bar.3 

 

REFERENCES

Fla. Code Jud. Conduct, Canon 3D(2).
Fla. Code Jud. Conduct, Canon 3D(2), Commentary.
Fla. JEAC Ops. 01-06, 98-21 and 97-17.
The Florida Bar v. Gilbert, 246 So. 3d 196, 203 (Fla. 2018).
Holt v. Sheehan, 122 So. 3d 970, 976 (Fla. 2d DCA 2013), note 2.
Favel v. Haughey, 727 So. 2d 1033, 1036 (Fla. 5th DCA 1999).

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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 T. 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

 

1. “Judges also have the duty to take appropriate action when they observe counsel engage in ethical violations. See Code of Jud. Conduct, Canon 3D(2).” Favel v. Haughey, 727 So. 2d 1033, 1036 (Fla. 5th DCA 1999).

2. In connection with minor violations, it has been noted:

Although there are rare occasions when judges must report attorneys to The Florida Bar, see Fla. Code Jud. Conduct, Cannon 3D(2), there are other times when a lawyer commits a minor violation or oversteps the bounds of professionalism within a particular case when a judge is not obligated to report the matter to The Florida Bar but may still publicly criticize the lawyer, not as a legal sanction, but as a prompt to encourage the attorney to maintain high standards in the future.

Holt v. Sheehan, 122 So. 3d 970, 976 (Fla. 2d DCA 2013), note 2.

3. In Fla. JEAC Op. 01-06, the Committee previously advised that a judge had a duty to report a suspended lawyer to The Florida Bar whom the judge determined that there was a substantial likelihood he was engaging in the unauthorized practice of law.