Application of the Code of Judicial Conduct Authorizes Senior and Retired Judges to Serve As Mediators

In In re Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994), the Supreme Court of Florida adopted a new Code of Judicial Conduct, which in Section B of the provision entitled "Application of the Code of Judicial Conduct" authorizes senior judges to serve as mediators. In authorizing the practice, the Court recognized that there was concern about "the propriety of a senior judge acting as both a mediator and an assigned senior judge." Id. at 1039. In response to that concern, the Court modified Section B as originally proposed and its commentary "to more fully explain when and under what circumstances a senior judge may be a mediator, id.," and we further explained that the Court would continue to monitor the application of the new provisions in light of the Court's concerns. 643 So. 2d at 1039. Section B of the Application provision of the Code of Judicial Conduct currently provides in part: B. Retired/Senior Judge . . . a retired judge who is subject to recall may serve as a mediator, may place his or her name on the mediator master list maintained by the chief judge, and 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 judge may in no other way advertise, solicit business, associate with a law firm, or participate in any other activity that directly or indirectly promotes his or her mediation services. A retired judge assigned to adjudicate a case shall disclose any negotiations or agreements for the provision of mediation services between the judge and any of the parties or counsel to the case. The purpose of these admonitions is to ensure that the judge's impartiality is not subject to question. The commentary to Section B states: Although a retired judge subject to recall may act as mediator or arbitrator, attention must be given to relationships with lawyers and law firms which may require disclosure or disqualification. See Canon 5D(1). This provision is intended to prohibit a senior judge from soliciting lawyers to use his or her mediation services when those lawyers are or may be before the judge in proceedings where the senior judge is acting in a judicial capacity. If a senior judge is rendering mediation services for compensation in civil personal injury matters, he or she should not accept a judicial assignment for that type of case in the same court where the senior judge is mediating those cases. On the other hand, the senior judge could be assigned judicial duties in other jurisdictions of that same court, e.g., criminal, family law, or probate matters, or be assigned as a senior judge in other geographic areas in which the judge does not conduct mediation proceedings.