          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 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.
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).


                                         -2-
      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.




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      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.




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      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




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                                       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]

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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




                                        -7-
              (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]




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