January 15, 1993

Opinion 92-48
Canon 2A
Traffic Magistrates-Part-time Judges

Dear

As a traffic magistrate you have inquired whether you may represent defendants charged with DUI, driving under the influence, and whether you may also continue to work in an administrative position in a public defender's office.

Four committee members believe that your inquiry is a request to interpret Florida Traffic Court Rule 6.630(i) and not a Code of Judicial Conduct inquiry that requires a response by this Committee.

However, they agree with four other members of the Committee that it would be improper for you to serve as a traffic magistrate and also represent defendants in the criminal traffic division of the county court.

Further, the Committee believes you may continue to work in the public defender's office while you serve as a traffic magistrate. However, two members are concerned that there may be a statutory prohibition against dual governmental employment. One member is concerned that a law enforcement officer would feel awkward appearing before a traffic magistrate on a traffic case and then having the same magistrate as a defense attorney on a criminal case.

When the Florida legislature originally created the position of traffic magistrate in 1989, it stated in Florida Statute §318.36 that magistrates would not be subject to the Judicial Code of Ethics. However, the Florida Supreme court in implementing the statute stated that all traffic magistrates are subject to the code of Judicial Conduct in the same manner as part-time judges, 559 So.2d 1101 (March 1990).

Part-time judges are defined in the Compliance section of the Code. Although the Court exempted traffic magistrates from the first portion of provision (A)(2) of the Compliance section of the Code, the Court prohibited traffic magistrates from representing clients or practicing before any office in any county court traffic matter.

All participating committee members believe that a DUI case is a county court traffic matter even though it is a criminal and not a civil infraction.

The committee believes the proposed dual activities, representing DUI defendants and service as a traffic magistrate, do not promote public confidence in the integrity and impartiality of the judiciary and could be considered a Canon 2A violation.

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).

With regards, I remain,

Yours very truly,

Harvey Goldstein, Chairman
Committee on Standards of Conduct Governing Judges

JT/mc

cc: All Committee Members

Participating members: Judges Tolton, Green, Booth, Doughtie, Goldstein, Farina, Rushing and Clarke, Esq.

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