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Court limits senior judges’ arbitration, voluntary trial resolution work

Managing Editor Regular News

Court limits senior judges’ arbitration, voluntary trial resolution work

Mark D. Killian

Managing Editor

Citing ethical concerns, the Supreme Court is enacting rules prohibiting senior judges from serving as voluntary trial resolution judges in any case in a circuit where they preside as a judge.

The court is also imposing a similar prohibition on senior judges who serve as arbitrators.

The court, on its own motion, amended the Code of Judicial Conduct July 7 in SC16-63, and the amendments become effective October 1 at 12:01 a.m.

These same-circuit, dual-service prohibitions are similar to the prohibition the court recently imposed on senior judges providing mediator services.

“Like that prohibition, 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,” the unanimous court held.

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 said it 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.”

The court said there was an ongoing concern about the potential that a senior judge who serves as a paid mediator could be seen as exploiting the judge’s judicial position or lending the prestige of judicial office to advance the private interests of the judge or a mediation firm with which the judge may associate, or otherwise running afoul of the Code of Judicial Conduct.

Because the court had similar ethical concerns about senior judges serving as voluntary trial resolution judges, it 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.

• The Judicial Ethics Advisory Committee took no position on the published amendments.

• The Supreme Court’s Alternative Dispute Resolution Rules and Policy Committee supported the amendments.

• The Florida Bar’s ADR Section also endorsed the amendments, but suggested 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.

“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,” the court said. “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.”

The court said it also agreed 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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