March 29, 1995
PERSONAL AND CONFIDENTIAL
(Part-Time Child Support
(Permitted to Practice Law
In re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated January 12, 1995
You requested an advisory opinion regarding whether part-time child support hearing officers are permitted to practice law in the court in which they preside. You note part time hearing officers serve only when the full-time hearing officer is unavailable and continue to practice law on a full-time basis. Additionally, it is our understanding that one law firm exclusively represents the Department of Revenue in your county. The substitute hearing officers are placed in the awkward position of presiding over cases as hearing officers where the firm attorneys appear and then may be an adversary against them in a separate case, either before the full-time hearing officer or in the judicial division.
The "Application of the Code of Judicial Conduct" indicates that the Code is applicable to "child support hearing officers." Therefore, it would certainly apply to "part-time" child support hearing officers.
Six of the responding members felt that it would appear that conflicts of interest could easily arise where a substitute hearing officer has to preside over cases litigated by attorneys that he or she may later be in an adversarial position within other cases in other forums. An obvious danger is that there may a "chilling effect" among attorneys that regularly appear before the substitute hearing officer that would result in "different" treatment for the part-time hearing officer. On the other hand, there may be corresponding pressure upon substitute hearing officers to make favorable rulings to those attorneys that appear before them in the hope of receiving less aggressive treatment or certain advantages in negotiations where they are adversaries.
As you point out, the Code specifically prohibits traffic magistrates from practicing law in the court in which they preside. Although we realize this decision may impact the availability of hiring part-time hearing officers, the Committee believes that they should follow the example of traffic magistrates and not practice law in the same court or forum where they preside.
Additionally, pursuant to the comment to Canon 3E(1), "...a judge is disqualified whenever judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply." One concurring judge stated, "In my opinion we should not have part-time judges practicing law regardless of the court they practice in. Article V of the Florida Constitution was designed to eliminate this practice."
The one dissenting member stated as follows:
As the committee note to Rule 1.491 points out, the term "hearing officer" was used to avoid confusion with "masters" who are governed by Rule 1.490. The function of these officers, by different name or not, is similar if not virtually identical. If this committee decides to apply the traffic magistrate rule to child support hearing officers, the next logical extension is to come to the same result in regard to masters and special masters. I do not think that is the intention of the Court. I would therefore reply that the Code does not prohibit child support hearing officers from practicing in the courts in which they preside.
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 judges, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 327 So.2d 5 (Fla. 1976).
Very truly yours,
Steve Rushing, Chairman
Committee on Standards of Conduct
CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)
Participating Members: Judges Doughtie, Farina, Green, Kahn, Patterson, Rushing, and Silverman