FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2021-02
Date of Issue: March 8, 2021

ISSUE

May a magistrate, judge and hearing officer continue to serve on the board of an organization given that there is a lawyer on the board who is a partner in a firm that regularly appears before the magistrate on child support cases?

ANSWER: Yes.

FACTS

The inquiring child support judicial hearing officer presides over child support cases where a governmental office has contracted-out its legal work to a private law firm. Attorneys from this law firm represent the governmental office on almost all child support cases that come before the judicial hearing officer.

The judicial hearing officer was invited to serve on the board of an organization that utilizes education, research, and advocacy to improve the lives of children and families. The organization will not appear before the judicial hearing officer or be engaged in any adversarial proceedings in the circuit where the judicial hearing officer presides. However, one of the board members is a managing partner at the law firm who has the contract to provide legal representation for the governmental agency.

The managing partner does not appear before the judicial hearing officer but other lawyers in the firm regularly appear before the judicial hearing officer. One of those lawyers is the spouse of the board member/managing partner who is also a partner in the same law firm. The managing partner reviews cases and offers supervisory guidance to the spouse/attorneys that come before the judicial hearing officer. The judicial hearing officer on occasion may communicate with the managing partner regarding processes and procedures on scheduling hearings.

The judicial hearing officer inquires as to whether they may continue to serve on the board of the organization under these circumstances where there is an attorney on the board who is a partner in a firm that regularly appears before them.

 

DISCUSSION

The definitions portion of the Code of Judicial Conduct defines “judge” as follows: When used herein this term means Article V, Florida Constitution judges and, where applicable, those persons performing judicial functions under the direction or supervision of an Article V judge. General magistrates clearly fall within this definition. As such, the term “judge” utilized throughout this opinion shall include general magistrates.

The Code of Judicial Conduct does not speak directly to this inquiry. However, the following canons are implicated:

Canon 2 of the Florida Code of Judicial Conduct is titled “A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities.”

Canon 2A states “[a] judge . . . shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Canon 2B states “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”

The commentary to Canon 2 describes the test for appearance of impropriety as “whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”

Canon 3E(1) requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply. We have issued a number of opinions on this issue and these opinions turn on the particular facts of each inquiry.

Canon 5A provides that “[a] judge shall conduct all of the judge’s extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) undermine the judge’s independence, integrity, or impartiality; (3) demean the judicial office; (4) interfere with the proper performance of judicial duties; or (5) lead to frequent disqualification of the judge.

Canon 5C specifically permits a judge to serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal or civic organization. The Supreme Court amended the Code of Judicial Conduct and its Commentary to encourage judges to participate in extrajudicial community activities. Code of Judicial Conduct, 840 So. 2d 1023 (Fla. 2003). Thus, the Code of Judicial Conduct permits and encourages appropriate community service by judges. The Code restricts a judge from such service if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be engaged frequently in adversary proceedings in the court of which the judge is a member. Canon 5C(3)(a). Although there is no indication that the organization at issue would come before the magistrate judge and create such a conflict, a fellow board member’s law firm and spouse do come before the magistrate on child support cases.

Applying the objective test, the Committee is of the opinion that the general magistrate may continue to serve on the board and would not be required to recuse themselves from presiding over child support cases. This committee has issued a number of opinions on this issue and these opinions turn on the particular facts of each inquiry. See Fla. JEAC Op. 2017-21.

The Committee agrees that mere membership on boards where interaction between members is perfunctory, would not require disclosure. However, some organizations and board member interactions may be more active and engaged. In those instances where the relationships and interactions between board members are closer and more involved, several committee members would recommend not only disclosure, but even recusal.

By its terms, Canon 3E(1) requires a judge in these circumstances to make a personal and case specific decision. Therefore, the Committee would advise the inquiring magistrate to make a reasoned determination of whether presiding over the fellow board members cases on a regular basis would cause their impartiality to be questioned. See Fla. JEAC Op. 97-12 (the decision to recuse from cases was a “personal and specific” decision). In making this decision, In Re: Frank gives guidance on the importance of doing all that is reasonably necessary to minimize the appearance of impropriety. Even where it is personally believed one’s judgment would not be colored, public perception may differ. See, In Re: Frank, 753 So. 2d 1228, 1240 (Fla. 2000).

If the inquiring magistrate elects to disclose, the fact that they do so does not automatically require the magistrate to be disqualified upon request by either party, but rather, resolved on a case-by-case basis. See Commentary to Florida Code of Judicial Conduct Canon 3E(1). Disclosure will permit the parties to decide whether to file a motion to disqualify the magistrate pursuant to Canon 3E(1); Section 38.10, Florida Statutes; and Florida Rules of General Practice and Judicial Administration 2.330. Or, the disclosure will permit the parties to consider waiving any such disqualification in accordance with Canon 3F.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 2, 2A; 2B; 3E(1); 3F; 5A; 5C(3)(a)
Fla. JEAC Ops. 92-39, 97-12, 12-09, 12-37, 13-02, 16-04, 2017-21.
In Re: Frank, 753 So. 2d 1228, (Fla. 2000)
Code of Judicial Conduct, 840 So. 2d 1023 (Fla. 2003)
Section 38.05, Florida Statues
Section 38.10, Florida Statutes
Fla. R. Gen. Prac. & Jud. Admin. 2.330

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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 Mark Herron, Esq., Judicial Ethics Advisory Committee Chair, Messer Caparello, P.A., Post Office Box 1701, Tallahassee, FL 32302 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, Supreme Court Clerk
All Committee Members
Alexander J. Williams, General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel