FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-23
Date of Issue: September 3, 2019

ISSUE

May the chief judge of a circuit, a criminal division administrative judge, or a criminal division judge contact the elected State Attorney, Public Defender, or their designated supervisory level attorneys to discuss judicial concerns about any of their attorneys’ conduct which adversely impacts the administration of justice?

ANSWER: Yes. As long as the communication does not violate rules against ex parte communication, is not coercive or unnecessarily demeaning, and does not create any doubt as to the impartiality of the involved judge(s).

FACTS

The inquiring judge notes that for many years judicial education programs and appellate decisions have encouraged trial court judges to be proactive in taking steps to require attorneys to avoid even the appearance of bias or prejudice and to likewise promptly address attorneys’ unprofessional or unethical conduct, repetitive tardiness, etc. as these may all negatively impact the administration of justice. The judge further comments that such issues which do not require or have not responded to immediate attention in the courtroom have often times been successfully addressed by a judge contacting the attorney’s supervisor to discuss the concern. The inquiring judge asks if that approach is permitted by the Code of Judicial Conduct as long as the rules prohibiting ex parte communication, such as those found in Fla. Code Jud. Conduct, Canon 3B(7), are not violated.

 

DISCUSSION

The inquiring judge refers to §43.29(1), Florida Statutes, Rule 2.215(a), Florida Rules of Judicial Administration, and Article V Section 2(d), Florida Constitution as possible sources of judges’ authority to do so. The JEAC limits the scope of its advice to matters of judicial ethics, so we will not comment on those sources. However, we will discuss several Canons that spell out a judge’s ethical responsibility to address the types of concerns mentioned by the inquiring judge.

“A judge shall require order and decorum in proceedings before the judge.” Fla. Code Jud. Conduct, Canon 3B (3). “A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words, gestures, or other conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, socioeconomic status....” Canon 3B (6). “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.” Fla. Code Jud. Conduct, Canon 3D(2); See Fla. JEAC OP 19-14.

In carrying out the ethical responsibilities listed above, as in all activities, judges must act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Fla. Code Jud. Conduct, Canon 2A. Furthermore, judges are specifically required to be patient, dignified, and courteous to lawyers who come before them. Fla. Code Jud. Conduct, Canon 3B(4). Canon 4 generally encourages each judge to engage in activities that will improve the administration of justice, but it cautions that such activities must be carried out in a way that does not actually or perceptually undermine the judge’s integrity or impartiality, nor appear to be coercive. Fla. Code Jud. Conduct, Canon 4A(1-6). See also Fla. Code Jud. Conduct, Canon 5A(1-6).

When conversations between judges and lawyers, addressing lawyers’ conduct, are intended and reasonably perceived by all concerned as fair, objective, and appropriate, they are usually well-received and are useful in resolving problems. Thus, such conversations are permitted by the Code of Judicial Conduct and most likely to be well-received when the judge or judges faithfully follow the  mandates in the preceding paragraph when contacting the State Attorney, Public Defender, or the subject lawyer’s supervisor within either of those offices. On the other hand, problems are created instead of being solved, when a judge’s comments, whether delivered to the subject lawyer or to others, about a lawyer’s conduct or performance are reasonably perceived as belittling, berating, abusive, coercive, or rude. Besides being counterproductive, that type of judicial conduct and communication violates several of the Canons discussed above, and can lead to disciplinary proceedings. See, In re Schapiro, 845 So. 2d 170 (Fla. 2003); In Re McAllister, 646 So. 2d 173 (Fla. 1994).

Any discussions between judges and members of either office regarding an attorney’s conduct should not give the appearance that either side is being given preferential treatment or receiving any procedural or tactical advantage. See Fla. JEAC Op. 17-02. As noted at the outset, care must be taken when addressing lawyers’ conduct in this context to avoid ex parte communications concerning any pending or impending proceeding. Fla. Code Jud. Conduct, Canon 3B(7).

 

REFERENCES

In re Schapiro, 845 So. 2d 170 (Fla. 2003)

In Re McAllister, 646 So. 2d 173 (Fla. 1994)

Florida Code Jud. Conduct, Canons 2A; 3B(3), (4),(6), (7); 3D(2);  4A(1-6); 5A(1-6)

Fla. JEAC OPs. 19-14, 17-02

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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 W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

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
General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel