The practice of law, it is sometimes said, is not that difficult. Perhaps anyone could do it? My old friend Horace Middlemeir finds great humor in suggesting that "anyone can practice anything, that don't make 'em any good at it." There is some poetic license here, as he usually says that in running down other professions, but it is perhaps somewhat humorous nonetheless.
The humor of referring to it as a practice and not a profession returned to me recently reading findings from the Judicial Qualifications Commission (JQC), interpreting the Code of Judicial Conduct and finding the practice of law. See, while we might argue that almost anyone can practice law, we know fairly clearly that judges cannot. Oh, there is a minimal exception in the Code, Canon 5(g) says
A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family.
So, a judge may represent her/himself, or give family members free legal advice. But, beyond that, "a judge shall not practice law." This is likely because in doing so, the judge would necessarily lend the prestige of office to others (Canon 2), and would create an appearance of impropriety (Canon 2). Thus, when a judge is an accused, even if not representing her/himself, it is likely the case will be transferred to another Circuit to diminish the chances for such an appearance. We learn here that such a transfer may be likely when a judge's family member is accused.
The decision from June is styled Inquiry Concerning Judge Barbara Hobbs, SC20-605. It is now pending further action by the Florida Supreme Court. Action from the Court is not anticipated soon, as it has announced that "July 9 through August 25 opinion releases limited to time-sensitive cases." This is somewhat parallel to the "dog days of summer" (July 3 through August 11), an old saying I may pursue in a future post; the saying does not refer to "hot sultry days “not fit for a dog,” but I digress.
The JQC makes some important and interesting findings of fact that bear discussion and recall. Though they are "findings," the decisions regarding any allegations against a Florida Judge are for the Florida Supreme Court. The "Court has the discretion to accept, reject, or modify part or all of the JQC's findings and recommendation of discipline. See Art. V, § 12(c)(1), Fla. Const." In re Andrews, 875 So.2d 441, 442 (Fla.2004). People are always innocent until proven guilty, and the Court has not yet rendered the ultimate decisions. The Judge filed a response recently stating "she is remorseful for her conduct which lead to the violations of the judicial canons in this matter and assures the Court that her misconduct will not reoccur."
The story begins with a Circuit Judge since 2012. In 2018, her son was charged with a misdemeanor, and he hired an attorney. Through the court management process, the judge later rotated to a new division, assumed another judge's caseload, and her son's attorney was "of record" in two cases there. When those two cases were called thereafter on routine matters, "Judge Hobbs failed to disclose that" attorney represented her son. That is not a good outcome, judges need to remain vigilant for such issues to arise on the spur of the moment (a witness appears in a case and the judge recognizes them from church, a social club, etc.).
Later still, her son "was taken into custody" after a shooting occurred at his residence. The judge went immediately to police headquarters to inquire about her grandson's location and to "see her son." She located and made arrangements for her grandson, but was initially denied access to her adult son. She was informed that only his attorney could see him, and she told them “I guess I am his lawyer, because I need to see my son.” The son was told of this representation and consented. Though the judge neither did anything to hinder the investigation nor were the police bothered by her presence, she was nonetheless present as the police interviewed the son.
The judge met privately with her son for 19 minutes, with the recording equipment in the room turned off. The interrogation then began and the judge advised her son to "tell the truth." The son related the facts of a dog bite, a shot through a closed door, and more. At various times, the "judge interjected" for clarification and gave instructions to her son. She suggested to the police that her son be released from custody to her; she pointed out to the police that some jail residents might harbor animosity toward her, and thus her family. The judge made contact "early that same morning" with the same lawyer from the earlier misdemeanor charge against her son, to provide current representation for her son.
When the son appeared in court soon thereafter, the mother/judge's judicial assistant was in attendance, sitting at the counsel table in court, "unbeknownst to Judge Hobbs." When the Circuit's Chief Judge learned of the arrest, he met with the judge, and at his "suggestion, Judge Hobbs phoned the JQC and self-reported her attendance at her son’s police interview." The Chief Judge was also concerned about the judicial assistant being in court, at the counsel table. The Chief made changes regarding Judge Hobbs's division assignment and had the son's case transferred to a judge from a different circuit (see appearance of impropriety discussed above). The Chief judge also reminded that the judicial assistant "represented the judge, (and) was subject to many of the same provisions of the Code of Judicial Conduct, and should not be seated at counsel table during hearings."
The Chief recommended some time off, and Judge Hobbs departed town without speaking to the judicial assistant. The assistant later "took official leave (with the judge’s knowledge) to attend another bond hearing" with the son. She again "appeared at counsel table." The Chief Judge "summoned" the judge and assistant "for counseling." He reminded of the constraints of "impropriety and the appearance of impropriety." After Judge Hobbs "declined to speak to" her assistant regarding her attendance at hearings, the Chief Judge did so at her request. The findings seem forgiving of the failure to counsel the assistant as the judge left town (urgency perhaps), but less so of the failure to do so when the judge knew of the time-off request to attend the second hearing.
The JQC noted that "judicial assistants occupy a somewhat 'unique' role in state government." These staff "are paid by the state, but are considered the judge’s 'personal staff.'” It noted various distinctions between these assistants and other state court employees. The Chief Judge related his conversation with the assistant, and "told Judge Hobbs" there were "grounds for termination," but the judge declined to do so. Another issue later arose with the assistant, involving perceptions of courthouse security. In the JQC proceedings, "a member noted that 'a lot of the things you’re (the judge) here answering for are things that she did.'”
The findings recite that "charges must be proven by 'clear and convincing evidence.'” On that heightened standard, the JQC concluded some of the allegations and complaints were not sufficiently proven. However, the JQC concluded sufficient evidence supports the judge is guilty of acting as her son's attorney. This, it says, "violated Canons 1, 2A, 2B, 5A(i), 5A(ii), and 5G." She was active, not merely advising a family member.
The JQC also concluded that the evidence is sufficient that the judge is "is guilty of failing to immediately inform" the assistant it was inappropriate to be at the counsel table. The JQC seems troubled by the assistant's actions and by the judge's reactions. It noted that some of the assistant's "conduct was so beyond the mainstream and improbable as to be unforeseeable by anyone."
The findings remind us that discipline is not for "punishment, but rather to gauge a judge’s fitness to serve as an impartial judicial officer.” It "examine(d) judicial misconduct for present fitness to hold office from two perspectives" (1) the "effect on the public’s trust and confidence" and (2) "the degree to which past misconduct points to future misconduct fundamentally inconsistent with the responsibilities of judicial office.” There were character witnesses heard in these regards. The JQC concluded the "Judge’s actions were misguided, but not ill-intentioned." And, based on the testimony of the character witnesses, it seems to conclude that the public trust has not been affected.
Noting the judge is remorseful and forthright, the JQC recommended: (1) a formally administered public reprimand; (2) a 60-day suspension from office without pay; and (3) attendance at an employee management program. Fla.Const.art.12(a)(1) (lawyer discipline). Where the matter concludes, again, is up to the Supreme Court.
However, in the findings are worthy lessons and reminders for all judges. First, Judges must remain acutely aware of the actions of all staff. Staff indeed represent the judge whether speaking on the phone with counsel or sitting at a table in a hearing. Judges must remain acutely aware of words and actions. There is a vast array of prohibitions on judicial behavior, and this situation reminds us all that staff must be monitored to ensure that their interactions and behavior do not reflect upon the judge. Stated frankly, when someone is that far out of their lane ("so beyond the mainstream") and is not significantly disciplined or terminated it has to impact the perception of the manager, the judge.
Returning to the main point, judges may not practice law. That may be harder to self-police, but is critical. When a loved one is in jeopardy, judgment may fail. But judges must be hypersensitive to the "appearance of impropriety," and regardless of police perceptions (not bothered), the public would likely conclude that someone with a judge as counsel has some advantages. If ten people from the street were asked "do you think an accused person with a judge as their lawyer will be treated differently by police," how many of the ten would deny it?
Though the JQC makes its findings and recommendations, the situation remains up to the Court. It has rejected recommendations from the JQC before and has accepted others. It will be interesting to see how the Supreme Court concludes the matter after the "dog days of summer" fade.
