sunEthics

Even with parties' consent, senior judge may not preside over civil trial when judge provides mediation services in same circuit in same type of cases

    Senior Judge retired from a circuit court judgeship and currently engages in mediation in civil cases in that circuit.  Senior Judge recently learned that the lawyers in a civil case over which Senior Judge presided while an active judge would like Senior Judge to preside over the trial of that case.  Senior Judge has provided no mediation services to any of the lawyers or parties involved in the case.  Senior Judge asked the Florida Supreme Court's Judicial Ethics Advisory Committee whether it would be ethically permissible to preside over the trial.

    The Committee answered in the negative, citing this portion of Canon 5F(2) of the Florida Code of Judicial Conduct:  "A senior judge who provides mediation services shall not preside over the same type of case the judge mediates in the circuit where the mediation services are provided; however, a senior judge may preside over other types of cases (e.g., criminal, juvenile, family law, probate) in the same circuit and may preside over cases in circuits in which the judge does not provide mediation services."  Because Senior Judge provides mediation for the same type of civil cases as the case in question, Canon 5F(2) is applicable.

    The Committee then noted that "the only remaining question is whether the consent of the parties permits the otherwise prohibited activity."  The Committee concluded that "the restrictions regarding geography and subject matter set forth in Canon 5F(2) may not be waived by consent."  Judicial Ethics Advisory Opinion 2009-10.

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