March 15, 2002 Managing Editor Regular News Panel takes up issues of judicial ethics Panel takes up issues of judicial ethics Mark D. Killian Managing EditorThe spouse of the administrative judge of a Family Law Division may not serve as a case manager in that division, according to the Judicial Ethics Advisory Committee.The advisory panel also recently held pro bono part-time family law hearing officers may continue to practice in the same circuit in which they preside as hearing officers over child support cases, and said a judge may not ethically mediate the dissolution of her friends’ marriage. Family Division In a 6-4 decision, the JEAC says it is a violation of the Code of Judicial Conduct for the spouse of a family division’s administrative judge to be employed by the court administrator’s office as case manager in that division. Opinion Number: 2002-02.The JEAC said the pivotal issue is the appearance of impropriety that can occur as a result of the fact that the spouse’s employment as case manager is directly involved and related to the family law division and its operation.“The inquiring judge admitted that the spouse, in her employment, will perform work and make decisions that will affect the judge’s divisions,” the JEAC said. “Although the inquiring judge indicates that he has and will have no supervisory control or decision-making authority over the spouse’s employment, promotion, or termination, it is unclear how an administrative judge of the family law division would have no input regarding the duties and performance of a case manager in the family law division.”The panel said the integrity and independence of a judge depends on his or her acting without fear or favor and public confidence may be diminished if it is felt that the judge is acting with favor in regard to the work and decisions of his case manager spouse.“Real or not, the appearance of impropriety becomes an important issue,” the panel said, noting Canon 2 says a “judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.”A minority of four JEAC members disagreed with the majority, whose argument were summed up by one of the dissenters: “I find nothing in the code that would preclude the spouse from continuing the employment, if it is otherwise authorized pursuant to Florida law. If a spouse is a judge’s judicial assistant, would his or her degree of loyalty be any different than having a nonspouse as a judicial assistant? Staff attorney? If the family law administrative judge were to appoint the judge’s judicial assistant as case manager for [the] Family Law Division, would this create ethical conflict? I think not.. . . ” Hearing Officer The panel also said pro bono part-time family law hearing officers may continue to practice law in the same circuit in which they preside as hearing officers over child support cases, subject to certain conditions. Opinion Number: 2002-03. T he committee said the inquiring judge appears to have read JEAC Opinion Number 00-32 as a “blanket proscription. . . placed upon judicial hearing officers regarding the practice of law in any cases in the circuit where the hearing officer presides.. . . ”The committee, however, said that was an incorrect reading of the opinion.“The rationale of Opinion 00-32 does not thwart the Judicial Hearing Officer program described in the present inquiry,” the committee said. “Here, a pro bono nighttime hearing officer system has been set up, and the county has recruited prospective hearing officers from among private practitioners who do not practice in family court and also from the ranks of government attorneys who might otherwise have difficulty fulfilling their pro bono obligations.”The panel said assuming that such volunteer pro bono hearing officers would be bound by Opinion 00-32, this opinion would not prevent such volunteer hearing officers from practicing law within their circuits.The JEAC said Opinion 00-32 relied specifically upon three prior opinions, each of which discussed the problems inherent when part-time hearing officers, officially employed in the circuit, continue to practice law within the circuit.“The committee thus takes this opportunity to clarify its view that the ethical prohibition is as the committee has set out in Opinions 00-32, 98-12, and 96-12 and applies to practice in family law and related areas,” the JEAC said. “Accordingly, the attorneys now participating in the pro bono program described by the inquiring judge may practice law within the same circuit, subject to the prohibition against handling family law cases, and the further prohibition against handling cases that the committee has previously found to be so overlapping with family law that conflicts of interest would arise with regularity.” Mediation The JEAC also said a judge may not privately mediate the dissolution of her friends’ marriage. Opinion Number: 2002-01.The inquiring judge’s friends were involved in extensive divorce litigation over the past six years. Ultimately, their case was dismissed for lack of prosecution. The judge is one of the few people that both parties trust. The judge would like to mediate their case and assist them in coming to an amicable resolution of their differences.The panel noted Canon 5F says, “A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law or court rule.”“Pursuant to the clear and unambiguous provisions of the Code of Judicial Conduct, the inquiring judge is precluded from serving as a private mediator unless there is a law or court rule that expressly authorizes said service.One committee member also said the inquiring judge should be cognizant of Canon 5G, which precludes a judge from practicing law and appears to likewise preclude the giving of legal advice to anyone other than the judge’s family. That committee member also notes that, “It would be difficult to mediate a complex dissolution of marriage without giving legal advice to the parties.”One member, however, said if the judge is talking about informal mediation or counseling in an effort to see if the friends can resolve their disputes now that the case has been dismissed for lack of prosecution, “I would not have an ethical problem with such an action so long as [the judge] makes it completely clear to both parties that he cannot provide legal advice to either side and cannot act in an official capacity in their case.”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, and conduct that is consistent with an opinion may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the committee’s interpretive opinions.The full text of the opinions is available on the Supreme Court’s website by clicking here.