SUBJECT: Obligation of special master where
party alleges misconduct by a lawyer

In this inquiry, a special master relates the following:

In May 1993, the Circuit Court entered an Order of Dissolution of Marriage between the former husband and former wife. In that order the former husband was obliged to pay certain sums of money on a weekly basis for child support and was concomitantly granted rights of visitation. Approximately fifteen (15) weeks later, the former husband and former wife signed a stipulation in which they agreed to terminate the former husband's obligation for child support in exchange for a termination of his rights of visitation. Ordinarily, such an agreement is flatly contrary to the public policy of the State of Florida and is in derogation of Florida law.

Contained within the stipulation and agreement, however, was language to the effect that this agreement was being made based upon the proposed contemplated adoption of the minor children by an unnamed third party. Such an adoption would of course, result in the termination of the biological father's parental rights. Also in the court file, with the stipulation, wa a consent for adoption signed by the natural father. No prospective adoptive father, however was named in the consent for adoption.

The trial court, On August 6, 1993, entered an order terminating the biological father's obligation to pay child support and termination any rights of visitation he might have in contemplation of the prospective adoption. It is important to note that no pleadings indication that a concomitant adoption was ongoing in Circuit Court were in the file, nor was there any order of termination of the natural father's parental rights.

In November 1996 the former wife filed pleadings to establish support against the natural father. In her pleadings, and in her testimony before me on March 19, 1997, she flatly stated that there never had been any adoption contemplated. She was not engaged or involved with any man at the time that the pleadings were drawn up in July/August 1993. She testified that her former attorney, who had handled the dissolution at that time, had told her that this "story" regarding a proposed adoption was the only way that she could terminate her former husbands rights of visitation.

The inquirer asks whether he is obligated to "file a grievance with The Florida Bar" on the basis of the present allegations made by the former wife.

Canon 3D(2) states that "a judge who receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules of Regulating the Florida Bar shall take appropriate action." The inquiry assumes, and the Committee must certainly agree, that the conduct related by the former wife would be in violation of the Rules of Professional Conduct. It also appears the under Canon 3D(2), the requirement to take appropriate action is not limited to cases in which the judge has actual knowledge.

Under the facts of this inquiry, the Special Master is not obligated to make a report to The Florida Bar. First, only the inquiring master may make a determination as to whether substantial likelihood exists that the lawyer in question violated the Rules of Professional Conduct. He is the person who actually had the conversation with the former wife, and he is the only person in a position to draw any conclusions concerning her credibility. Of course, he must take into account the fact that she has now admitted filing with the court in 1993 a false stipulation. He must also take into account the potential motive or bias of the former wife in that it is she who presently seeks child support payments and is apparently aware that the 1993 stipulation impedes that goal. One member of the Committee suggests extremely close and careful consideration of the allegations. According to this Committee member, referral by a judge or special master to a grievance committee is "drastic because the weight of our recommendation is carefully considered by Bar authorities."

If the inquirer concludes that substantial likelihood exists, he still must answer the question of what a Code means by "appropriate action." The Code, of course, does not define appropriate action. The commentary suggests that a judge who "has knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyers honesty, trustworthiness, or fitness as a lawyer in other respects, is require under this Canon to inform the appropriate authority.

If the lawyer in question in fact gave the former wife the advice that she now relates, this would raise the substantial question as to the lawyer's honesty or trustworthiness. The "appropriate authority" referred to in the commentary could only mean The Florida Bar, or its local grievance committee. Accordingly, although under the circumstances of of this inquiry, the inquirer is not obligated to file a grievance, he is required to reach a reasoned determination of whether substantial likelihood exists that the lawyer has committed a violation of the Rules Regulating the Florida Bar. Should he reach that conclusion, he would then be obligated to inform the Bar or the local grievance committee. The most difficult question here concerns what steps the inquiring general master must take in order to determine whether a substantial likelihood exists. One such step might be a frank discussion with the lawyer who now stands accused by the former client.

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 2nd day of July, 1997.

Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges

Participation Members: Judges Dell, Green, C. Kahn, L. Kahn, Patterson, Silverman, 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)