May 29, 1987
Opinion No. 87/8
Canon 2 and 3
A majority of the Committee has responded to your letter of March 23, 1987. You stated that your husband is in the prelicensure stages of becoming a Florida bondsman and that he has signed a contract for employment with a bonding company located in the counties that you serve. You pointed out that when setting a bond for a criminal defendant that you refer to bond list that establishes the usual or recommended bonds for every criminal offense and that you generally follow this list unless there appears aggravating or mitigating circumstances. You state that there are four major bonding companies in the counties and that it would be impossible for you to know or to take into consideration at the time of setting the bond, exactly which of those four companies a defendant might select. You also recognize that it would be improper to refer a defendant to a particular bonding company and that it would be inappropriate for you to conduct a forfeiture hearing involving you husband's bonding company. You asked whether it would be appropriate for you to continue setting bonds at first appearance hearings and where a defendant fails to appear in your court or violates his probation.
The Committee concluded that under the circumstances expressed in your letter that there is no prohibition under Canon 2 and Canon 3 which would require you to refrain from setting bonds at first appearance hearings. However, the Committee concluded that you should recuse yourself from any proceeding in which your husband's bonding company has an interest in the outcome of that proceeding. A majority of the responding members concluded that you should recuse yourself from any case involving a defendant who has been bonded by your husband. Several members expressed concern that there is a great potential for the occurrence of the appearance of impropriety. One member suggested that you would have the obligation to know the bonding company in every case since even if you inadvertently dealt with a bond issued by a company that employs your husband an immediate appearance of impropriety would result. It was the consensus of the Committee that you will have to exercise scrupulous care to avoid the appearance of impropriety.
We have based our opinion on the information furnished in your letter. The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges 327 So2d 5 (Fla. 1976).
We appreciate your inquiry and trust that the foregoing information will be of some assistance to you.
Very truly yours,
John W. Dell
cc: All Committee Members
Participating members: Judges Blanchard, Booth, Dell, Frank, Goldstein,
Green, Shutter, Tedder and Attorney F. Shields McManus
All reference to the inquiring judge is deleted from the copies sent to the following individuals.
Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Kathleen T. Phillips, Esq., Chairman, Judicial Qualifications Commission.
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida