# Supreme Court of Florida

____________
No. SC16

- 63

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IN RE: AMENDMENTS TO THE CODE OF JUDICIAL CONDUCT

— SENIOR JUDGES SERVING AS VOLU NTARY TRIAL RESOLUTION

JUDGES AND ARBITRATORS

.

[July 7, 2016]

PER CURIAM.

The Court, on its own motion, amends the Code of Judicial Conduct (Code)
to prohibit a senior judge from serving as a voluntary trial resolution judge in any
case in a circuit in which the senior judge is presidin g as a judge. 1 A s
recommended by the Executive Council of the Alternative Dispute Resoluti on

Section of The Florida Bar (ADR Section) , we further amend the Code to impose a

similar prohibit ion on a senior judge who serve s as an arbitrator

. The se same

circuit dual

- service prohibitions are similar to the prohibition the Court recently
imposed on senior judges providing mediator services

. 2 Like that prohibition,

1

. We have jurisdiction. See art. V, § 2(a), Fla. Const.

2

. See In re Amends. to Code of Jud. Conduct; Fla. Rules for Certified & Court

- Appointed Mediators; Fla Rules of Civ. Pro.; Fla. Rules of Jud. Admin.; Fla.- 2

-

t he se prohibitions are intended to ensure that
, when a senior judge also provides

these types of dispute

- resolution services
, the dual service does not result in an
appearance of or the potential for impropriety.

BACKGROUND

In In re Senior Judges a s Mediators , 141 So. 3d 1172 (Fla. 2014), the Court

amend ed the Code and the various rules of procedure governing senior judges
serving as mediators to prohibit a senior judge from serving as a mediator in any
case in a circuit in which the senior judge is presiding as a judge. The Court
adopted the prohibition because of ethical concerns about th e propr iety of such

dual ser vice. P rohib iting same

- circuit dual serv ic e as a senior judge and a

mediator was intended to “further alleviate any concern that [a mediator also]
serving as a senior judge could be seen as inappropriately creating an advantage in
obtaining mediation business for the senior judge or any mediation group with
which the senior judge associates .” Id. at 1174 (citing In re Report of Alternative
Dispute Resolution Rules & Policy Comm

. on Senior Judges as Mediators , 915 So.

2d 145, 14 8 (Fla. 2005 ) (recognizing the ethical concern)). There was an
ongoing concern about the potential that a senior judge who serves as a paid mediator could be seen [n.2] as exploiting the judge’s judicial positio n [n.3] or lending the prestige of judicial o ffice to advance the private interests of the judge or a mediation firm with which the judge

Rules of Juv. Pro.; & Fla. Fam. Law Rules of Pro.

— Senior Judges a s Mediators
, 141 So. 3d 1172 (Fla. 2014)

.- 3

-

may associate, [n.4] or otherwise running afoul of the Code of Judicial Conduct

. [N.2] See Fla. Code of Jud. Conduct, Canon 2 (requiring a judge to avoid impropriety and the appearance of impropriety in all of the judge’s activities).
[N.3] See Fla. Code of Jud. Conduct, Canon 5D (providing a judge shall not engage in financial and business de alings that may reasonably be perceived to exploit t h e judge’s judicial position).
[N.4] See Fla. Code of Jud. Conduct, Canon 2B (providing a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others).

Id

. at 1173.
Prohibiting such dual service in the same circuit was one of the new
safeguards the Court adopted for senior judges who also serve as mediators. Id.

Another new safeguard was requiring a senior judge to ensure that entities that
provide media tion services with which the senior judge associates abide by the
same prohibitions on advertising or promoting the senior judge’ s mediation service
as were already imposed on the senior judge. Id.

Because the Court had similar ethical concerns about seni or judges serving
as voluntary trial resolution judges, the Court published for comment proposed
amendments to the Code that would prohibit same

- circuit dual service as a senior
judge and a voluntary trial resolution judge. Three comments were filed.- 4

-

In its comment, t he Judicial Ethics Advisory Committee tak es no position on

the published amendments . The Supreme Court’s Alternative Dispute Resolution

Rules and Policy Committee support s the amendments. T he ADR Section also

endorses the amendments to the Code , but suggests a number of additional

amendments to address senior judges who serve as arbitrators and to prohibit the
promotion of a senior judge ’ s voluntary trial resolution and arbitration services.

AMENDMENTS
After considering the comment s filed, we amend Canon 5F(2) of the Code to
prohibit a senior judge from serving as a voluntary trial resolution judge or an
arbitrator in any case in a circuit in which the judge is presiding as a senior judge.
We agree with the ADR Section that the sam e ethical concerns that warranted
prohibiting same

- circuit dual service as a senior judge and a mediator and now

warrant s e xtending th at prohibition to a senior judge who serve s as a v oluntary trial
resolution judge , also warrant s extending same

- circuit du al

- service prohibition to a
senior judge who serve s as an a rbitrator . We also agree with the ADR Section that
, like a senior judge who provides mediat i o n serv ic e s , a senior judge who offers

v oluntary trial resolution or arbitrat ion services should be expressly prohibited
from directly or indirectly promoting those services and from permitting an entity

with which the se nior judge associates to do so.- 5

-

Accordingly, we amend Canon 5F(2) and its commentary , as well as section

B of the a pplicat ion section of the Code of Judicial Conduct as reflected in the
appendix to this opinion. New language is indicated by underscoring
, and
deletions are indicated by struck

- through type. The amendments shall become

effective October 1, 2016 , at 12:01 a.m.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding

– The Code of Judicial Conduct
Judge Barbara Lagoa, Chair, Judicial Ethics Advisory Committee, Third District Court of Appeal, Miami, Florida; Judge Rodney Smith, Chair, Committee on Alternative Dispute Resolution Rules and Policy, Eleventh Judicial Circuit, Dade County Courthouse, Miam i, Florida; D avid Robert Hoyle, Chair, Alternat ive Dispute Resolution Section, D. Robert Hoyle, P.A., Bradenton, Florida; and S usan Carolyn Marvin and James Calvin Goodlett, Office of the State Courts Administrator, Tallahassee, Florida,
Responding with Comments- 6

- APPENDIX

Canon 5. A Judge Shall Regulate Extrajudicial Activities to Minimize the

Risk of Conflict w ith Judicial Duties

A.

– E. [No Change]

F. Service as Arbitrato r or Mediator.
(1) [No Change]
(2) A senior judge may serve as a mediator in a case in a circuit in which the senior judge is not presiding as a judge only if the senior judge is certified pursuant to rule 10.100, Florida Rules for Certified and Court

- Appointed Mediators. Such senior judge may be associated with entities that are s olely engaged in offering mediation or other alternative dispute resolution services but that are not otherwise engaged in the practice of law. However, such senior judge may not advertise, solicit business, associate with a law firm, or participate in any other activity that directly or indirectly promotes his or her mediation , arbitration
, or voluntary trial resolution services and shall not permit an entity with which the senior judge associates to do so. A senior judge shall not serve as a mediator
, arb itrator
, or voluntary trial resolution judge in any case in a circuit in which the judge is currently presiding as a senior judge. A senior judge who provides mediation , arbitration
, or voluntary trial resolution services shall not preside over any case in the circuit where the mediation such services are provided; however, a senior judge may preside over cases in circuits in which the judge does not provide mediation such dispute

- resolution services . A senior judge shall dis close if the judge is being utilized or has been utilized as a mediator
, arbitrator
, or voluntary trial resolution judge by any party, attorney, or law firm involved in the case pending before the senior judge. Absent express consent of all parties, a seni or judge is prohibited from presiding over any case involving any party, attorney, or law firm that is utilizing or has utilized the judge as a mediator
, arbitrator
, or voluntary trial resolution judge within the previous three years. A senior judge shall disclose any negotiations or agreements for the provision of mediation services as a mediator, arbitrator
, or voluntary trial resolution judge between the senior judge and any of the parties or counsel to the case.

G. Practice of Law. [No Change]

COMMENTARY

Canon 5A

– Canon 5F(1 ). [No Change]- 7

-

Canon 5F(2). The purpose of the admonitions in this canon is to ensure that the impartiality of a senior judge is not subject to question. Although a senior judge may act as a mediator
, or arbitrator
, or vol untary trial resolution judge in a circuit in which the judge is not presiding as a senior judge, attention must be given to relationships with lawyers and law firms which may require disclosure or disqualification. These provisions are intended to prohibi t a senior judge from soliciting lawyers to use the senior judge's mediation services when those lawyers are or may be before the judge in proceedings where the senior judge is acting in a judicial capacity and to require a senior judge to ensure that enti ties with which the senior judge associates as a mediator abide by the same prohibitions on advertising or promoting the senior judge's mediation service as are imposed on the senior judge.

Canon 5G. [No Change]

Application of the Code of Judicial Conduc t This Code applies to justices of the Supreme Court and judges of the District Courts of Appeal, Circuit Courts, and County Courts.
Anyone, whether or not a lawyer, who performs judicial functions, including but not limited to a civil traffic infraction h earing officer, court commissioner, general or special magistrate, domestic relations commissioner, child support hearing officer, or judge of compensation claims, shall, while performing judicial functions, conform with Canons 1, 2A, and 3, and such other provisions of this Code that might reasonably be applicable depending on the nature of the judicial function performed.
Any judge responsible for a person who performs a judicial function should require compliance with the applicable provisions of this Co de.
If the hiring or appointing authority for persons who perform a judicial function is not a judge then that authority should adopt the applicable provisions of this Code.
A. [No Change]
B. Retired/Senior Judge- 8

- (1) A retired judge eligible to serve on assignment to temporary judicial duty, hereinafter referred to as “senior judge,” shall comply with all the provisions of this Code except Sections 5C(2), 5E, 5F(1), and 6A. A senior judge shall not practice law or serve as a mediator , arbitrator
, or volu ntary trial resolution judge in a circuit in which the judge is presiding as a senior judge, and shall refrain from accepting any assignment in any cause in which the judge's present financial business dealings, investments, or other extra

- judicial activit ies might be directly or indirectly affected.

(2) [No Change]

COMMENTARY

[No Change]