By Gary Blankenship
Senior Editor

Former judges who return to the practice of law should not use the title of judge on letterheads, business cards, or in advertisements, but should be able in ads to note they have retired from the bench, according to a Bar committee.

The Standing Committee on Advertising discussed the issue, at the request of the Supreme Court, at a May 12 meeting. It will consider adopting a formal advertising opinion on the subject when it meets again June 25 during the Bar’s Annual Convention.

Committee members expressed concerns that former jurists who use the title of “judge” in their communications may be implying they have more to offer than they really do.

“I think it influences the public in a negative manner in that they may think they are getting something that is not true,” said committee Chair Renee Gorman.

The committee was considering the matter after the Bar received a letter from the Supreme Court requesting “that The Florida Bar study whether the Rules Regulating The Florida Bar should be amended to preclude retired judges from using the title ‘judge’ in letterheads, pleadings, advertising, business cards, etc., in connection with their practicing law. It has been brought to the Court’s attention that the Bar has recently found the practice to be ‘problematic’ and advised a lawyer to remove the title from his law firm stationery. . . .

“Although no rule precisely covers the subject, ethics opinions from The Florida Bar and the American Bar Association indicate that the use of the honorific title may create an unjustified expectation of results, suggesting that the lawyer can achieve results by means that violate the Rules Regulating The Florida Bar.”

The court letter came after a recent grievance case, where a case was closed with a finding of no probable cause involving a former judge who used the title before his name, and followed his name with the notation (Ret.). The grievance committee did issue a letter of advisement, questioning whether the lawyer should have used the title, and the lawyer responded noting it is a common practice among former judges.

Instead of a rule, the committee is looking at issuing a formal opinion.

Committee members said they generally agreed with University of Florida law Professor Joe Little, who sent a letter saying it was wrong for former judges to trade on their bench experience because it implied special access or knowledge.

“I don’t see the benefit to a client of someone having been a judge. You’re actually hiring someone to be your attorney to represent you. I think the lay person would think, ‘Oh boy, this guy has been a judge and that’s really going to help me,’ which is why they want to advertise it,” committee member Hal Lewis said. “I think sometimes being a judge does not prepare you to be an advocate.”

Other members said while a former judge shouldn’t use the title in communications, it was acceptable to note the experience in an advertisement or other setting. Gorman said it would be like an attorney listing his or her certification in a particular area of law.

Little, in his letter, said former judges or justices should “be prohibited from referring to themselves as judges, justices or former judges or justices in their advertisements.

“ . . . I would extend this prohibition to any references to a lawyer, whether as an advocate or as an ‘expert witness,’ before a trial judge and especially before a jury as a former judge or former justice. I have been involved in several cases in which former justices appeared to me to be trading on a perception of prestige from having occupied the judicial office. In my opinion, that perception should not be for sale.”

Former Supreme Court Justice Charles Wells, who returned to private practice after retiring earlier this year, gave a slightly different perspective. He agreed that “a former judge should not communicate the fact of his/her having been a judge in a way that implies that fact gives to the former judge an advantage in a particular case. I agree that there should not be a reference to having been a former judge in pleadings or other papers filed in specific cases.”

He argued, though, that it was truthful and accurate for a former judge to communicate that information in an ad, that judges face a mandatory retirement age in Florida and many return to private practice and should be able to provide factual information to potential clients about their service, and that not being able to provide such information might discourage some lawyers from making the sacrifices to serve as a judge.

“I believe that the dissemination of truthful factual relevant information about a lawyer’s judicial service in ‘advertising, letterheads and business cards,’ Web sites, or other similar dissemination is constitutionally protected speech as set forth in case law by the United States Supreme Court and respected by the Florida Supreme Court,” Wells wrote.