Florida and Virginia: Letting retired judges/justices appear as counsel & practice law in state courts

Mandatory retirement ages plus increasing life expectancy is meaning more judges having years of potential active practice after they forced to relinquish their robes. In some states they may be potentially recalled as senior judges or appointed as hearing officers. However, in several states, retired judges and justices who are taking state retirement may not appear in a state court at all representing a client. Two states in particular, Florida and Virginia, have seen legislative activity to loosen the restriction.

Prior to the 2011 General Assembly session, Virginia retirement law (51.1-309) included the following:

§ 51.1-309. Appearance as counsel in certain forums prohibited.

A. No former justice or judge of a court of record of the Commonwealth and no former full-time judge of a court not of record of the Commonwealth, who is retired and receiving retirement benefits under the provisions of the Judicial Retirement System, shall appear as counsel in any case in any court of the Commonwealth. (bolding added)

The general prohibition in 51.1-309(A) remains, but SB 902 of 2011 added a limited exception for retired judges/justices doing pro bono work:

C. The provisions of subsection A shall not be applicable if (i) the retired justice or judge has been retired for at least two years and is not authorized for temporary recall by the Chief Justice of the Supreme Court, (ii) the retired justice or judge is appearing as counsel, pro bono, for an indigent person in a civil matter, (iii) such civil matter is assigned or referred to the retired justice or judge by a nonprofit legal aid program organized under the auspices of the Virginia State Bar, and (iv) the retired justice or judge is not an employee, officer, or board member of such nonprofit legal aid program. Nothing herein shall relieve the retired justice or judge from having obtained any license or meeting any requirement in connection with the appearance as counsel as required by law, rule, or regulation.

Florida’s current law is even more restrictive. Under 25.151 “No justice of the Supreme Court of Florida drawing retirement compensation as provided by any law shall engage in the practice of law.” In 2011, HB 7113  and HB 7199 would have outright repealed this ban. HB 7199 was the implementation legislation for HJR 7111 as originally introduced. That HJR, as readers may recall, would have divided up the state’s supreme court into civil & criminal panels, changed the court’s rule making powers, etc. (click here for posts on the subject)

HB 7113, however, had nothing to do with HJR. While it was approved by the full House it nevertheless but died in Senate Messages. HB 7113 has already been reintroduced and prefiled for 2012 as HB 4055 but not yet assigned to a committee.