SUBJECT: Whether an attorney may sit as a
traffic magistrate in one county and
maintain a county court practice
in another county
The inquirer has been recently appointed to sit as a part-time traffic magistrate in Hillsborough County, 13th Judicial Circuit. In the course of his law practice, he conducts no business in the Hillsborough County Court. He now asks whether he is able to sit as a traffic magistrate in Hillsborough County while still maintaining a county court practice in the counties of the 6th Judicial Circuit.
The language in the Application of the Code of Judicial Conduct provides at A(2), "a traffic magistrate should not practice law in the civil or criminal traffic court in any county in which the magistrate presides."
Relying upon the rules specifically applicable to traffic magistrates, the Committee has observed that under the code, part-time child support hearing officers may not practice law in the same court or forum in which they preside. Opinion 95-8, 96-12. In 96-12, the inquiring hearing officer wished to know if he could continue to practice family law so long as he did not appear before another master, hearing officer , or circuit judge. The Committee found that the inquiring hearing officer could not continue to handle such cases.
In opinion 92-48, the inquiring magistrate asked whether he could represent defendants charged with DUI while serving as a part-time magistrate. The Committee found that 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 construed as a Canon 2A violation." Nothing in this opinion specifically states whether the part-time magistrate proposed to practice in his own county or in other counties.
In opinion 93-26, an inquiring judge asked the Committee to reconsider opinion 92-48 because literal application of the earlier opinion would result in the loss of many traffic magistrates. The Committee declined to recede from opinion 92-48, and cited Traffic Rule 6.630(i) which provides:
Code of Judicial Conduct. All traffic hearing officers shall be subject to the code of Judicial Conduct in the same manner as part-time judges, except that they shall be exempt from Canon 6B and C and the first portions of provision A(2) of the compliance section of the code, which prohibits a part-time judge from practicing in the court on which the judge serves or in any court subject to the appellate jurisdiction of the court in which the judge serves. Whether full-time or part-time, traffic hearing officers shall be prohibited from representing clients or practicing before any official in any county traffic court matter or from representing any client appealing any county court traffic decision.
The Committee has never looked at the exact issue now presented. The code itself limits the express prohibition to the practice of law in the civil or criminal traffic court in any county in which the magistrate presides. Rule 6.630(i), however, acknowledges provision A(2) of the Application of the Code of Judicial Conduct, and appears to supplement that prohibition by restricting the representation of clients or practice in any county traffic court matter or appeal from any county traffic court decision. A majority of the Committee finds that the traffic rule supplements, rather than merely restates, provision A(2), and would therefore find that the inquirer may not handle county court traffic matters in any court. A minority of the Committee however, would construe the phrase "any county" in traffic rule 6.630(i) as simply meaning any county in which the magistrate presides. These members would find that the inquirer may continue to maintain a county court practice, including traffic matters in counties in which he does not sit as a magistrate.
The Committee notes the possible inconsistency between provision A(2) of the code of Judicial Conduct and Rule 6.630(i). This may well be a matter that the Florida Supreme Court or the Traffic Rule Committee might wish to look at.
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 So.2d 5 (Fla.1976).
Dated the 19th day of August, 1997.
Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges
Participation Members: Judges Cardonne, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Smith, Tolton and Attorney Novicki
cc: All Committee Members
Justice Charles T. Wells
Office of the State Courts Administrator (name of judge deleted from this copy)