Supreme Court of Florida

____________

No. SC16-63

____________

IN RE: AMENDMENTS TO THE CODE OF JUDICIAL CONDUCT—

SENIOR JUDGES SERVING AS VOLUNTARY 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 presiding as a judge.1 As 

recommended by the Executive Council of the Alternative Dispute Resolution 

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

similar prohibition on a senior judge who serves as an arbitrator. These samecircuit 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 -

these 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 as Mediators, 141 So. 3d 1172 (Fla. 2014), the Court 

amended 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 the propriety of such 

dual service. Prohibiting same-circuit dual service 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, 148 (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 

position

[n.3] or lending the prestige of judicial office 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 as 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 dealings that may reasonably be perceived to 

exploit the 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 mediation 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 senior 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, the Judicial Ethics Advisory Committee takes no position on 

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

Rules and Policy Committee supports the amendments. The 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 comments 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 same ethical concerns that warranted 

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

warrants extending that prohibition to a senior judge who serves as a voluntary trial 

resolution judge, also warrants extending same-circuit dual-service prohibition to a 

senior judge who serves as an arbitrator. We also agree with the ADR Section that, 

like a senior judge who provides mediation services, a senior judge who offers

voluntary trial resolution or arbitration services should be expressly prohibited 

from directly or indirectly promoting those services and from permitting an entity 

with which the senior judge associates to do so. 
- 5 -

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

B of the application 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, Miami, Florida; David Robert Hoyle, Chair, Alternative

Dispute Resolution Section, D. Robert Hoyle, P.A., Bradenton, Florida; and Susan 

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 with Judicial Duties

A. – E. [No Change]

F. Service as Arbitrator 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 solely 

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,

arbitrator, 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 mediationsuch services are provided; however, a 

senior judge may preside over cases in circuits in which the judge does not provide

mediationsuch dispute-resolution services. A senior judge shall disclose 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 senior 

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 voluntary 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 prohibit 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 entities 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 Conduct

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 hearing 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 Code.

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 voluntary 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 activities might be directly 

or indirectly affected.

(2) [No Change]

COMMENTARY

[No Change]