FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 2001-02
Date of Issue: February 19, 2001

ISSUES

MAY A JUDGE PARTICIPATE IN AN E-MAIL FORUM COMPOSED OF REAL ESTATE LAWYERS?

ANSWER: Yes, subject to strict compliance with the conditions set forth in this opinion.

FACTS

The inquiring judge was recently elected to the bench. As a lawyer, he participated in an e-mail forum composed of lawyers practicing real estate law. Legal issues are raised on the forum and the judge recognizes the potential that one of these issues could some day come before the inquiring judge.

The forum is available only to licensed Florida attorneys who are member agents of the Attorneys' Title Insurance Fund, Inc. The forum has a moderator who screens applicants for membership to make certain they meet this criterion. The moderator also screens messages in order to maintain topical relevance and administrative control but does not censor messages.

Each member can post a question or comment about any topic related to real estate and/or real estate law. That message is sent to the moderator for screening of topical relevancy and administrative control before forwarding it to all members. At that point, any or all members have the opportunity to respond to the initial inquiry, which in turn is forwarded to all members. In this way, the members engage in an ongoing "virtual dialogue."

There is an archive site where all messages generated by the forum are stored in chronological sequence, sorted by date and time of the message. There is also the option to sort by subject so that a member can review a message "thread" as it develops over time.

This e-mail forum is comprised primarily of real estate transactional practitioners. At present, there are about 250 attorneys from all over Florida participating in the Fund Attorneys Forum. There are also representatives from Attorneys' Title Insurance Fund, Inc., who provide underwriting guidance on specific title questions and who provide legislative and case law updates. The forum moderator has gone out of his way to advise participants to be very careful about discussing specific pending cases as opposed to specific issues, inasmuch as an adversary attorney could also be participating on the forum. This warning is posted as part of the forum rules distributed to all participants.

The forum has been used primarily to discuss title questions, title insurance underwriting questions, day-to-day practice issues and marketing/business development issues. The moderator also uses the forum to distribute news to the members about developments in Florida real estate, both in the legal arena and in the general business arena. However, there is never discussion of pending cases, particularly those at the trial level.

The judge inquires whether he may continue as a member of the forum, and if so, to what degree he may participate in the forum.


DISCUSSION

Canon 4 of the Code of Judicial Conduct provides that a judge may engage in activities to improve the law, the legal system, and the administration of justice. Canon 5, however, requires that a judge must regulate extrajudicial activities to minimize the risk of conflict with judicial duties. The present analysis is influenced by both of these rules, but the Judicial Ethics Advisory Committee (Committee) believes that the activity in question is primarily an extrajudicial activity under Canon 5.

The Committee has never previously considered the question of whether a judge may participate in an e-mail forum or bulletin board. Nevertheless, several prior opinions of this Committee provide guidance.

The Committee has previously noted that a judge may write a newspaper column concerning legal issues. A judge may, in particular, write a bi-weekly column concerning attorneys' fees where the column would analyze recent Florida appellate and supreme court decisions concerning attorneys' fees. See Fla. JEAC Op. 95-37. In that opinion, the Committee noted that the judge "should refrain from stating how (the judge) would rule on a related question," and the judge should also be careful on offering "suggestions as to how to remedy . . . problems" caused by appellate decisions. Id. See also, Fla. JEAC Op. 99-14 (a judge may write a local newspaper column on the judicial system in the judge's county.)

A judge may also establish a web page on the Internet for the purpose of an upcoming election campaign. See Fla. JEAC Op. 99-26. Establishing such an Internet web page does not violate Canon 2 of the Code which prohibits impropriety, and the appearance of impropriety, in all of a judge's activities. See id. This Committee did recognize, however, that such a website "may not be used as a forum for the discussion of pending legal matters." See id.

On several occasions, the Committee has recognized that judges may author articles and books. See e.g. Fla. JEAC Ops. 76-17, 78-12, 82-05. In the course of publishing such a book or article, a judge may not "intimate how he would rule on matters pending before any court." Fla. JEAC Op. 2000-02, quoting Fla. JEAC Op. 99-14. Accordingly, although a judge may write an article on the subject of new legislation, the judge may not, in that article, make conclusions as to the constitutionality of the legislation. See id.

The Committee concludes that the proposed activity is not completely prohibited by either Canon 4 or Canon 5. Nevertheless, the ability of the inquiring judge to participate in the e-mail forum without any restrictions is curtailed by Canon 5A and 3B(7). Under 5A, a judge:

. . .shall conduct all of the judge's extrajudicial activites so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;

(2) demean the judicial office; or

(3) interfere with the proper performance of judicial duties."

Accordingly, in order to ensure full compliance with Canon 5A, this Committee concludes that, although the judge may maintain membership in the forum, the judge must limit participation to reading the postings. The judge may not ask questions, nor may the judge respond to pending questions.

Imposition of this restriction is also required by Canon 3B(7) which provides, subject to certain exceptions, that a judge "shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding . . . ." Although the forum imposes controls in order to avoid the possibility of comment on pending or impending proceedings, the Committee has concluded that it is a practical impossibility to rule out the chance that a comment would ever be made that might relate to an actual pending or impending matter. Accordingly, the inquiring judge must be acutely aware of the ethical prohibition against ex parte communications and must notify all other members of the strict prohibition against ex parte contact and request other members to abide by that. Should it appear that the rule is being violated, whether or not intentionally, the judge will have to withdraw from the forum.

This Committee reconfirms the body of opinions that allow a judge to teach and write in traditional settings. The Committee further believes, as set out above, that mere participation in the e-mail forum does not violate the Code of Judicial Conduct. Nevertheless, the immediacy and lack of control over virtual communications requires the conditions set out in this opinion. Under these conditions, the inquiring judge may continue to participate in the forum. The Committee cautions, however, that should problems arise that make it exceedingly difficult for the judge to abide by these conditions, the judge should discontinue participation in the forum.

REFERENCES

Code of Judicial Conduct: Canons 2, 3B(7), 4, 5, 5A.

Florida JEAC Opinions: 2000-02, 99-26, 99-14, 95-37, 85-9, 82-05, 78-12, 76-17.

_____________

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850

Participating Members:
Judge Charles J. Kahn, Jr.
Judge Gisela Cardonne
Judge Lisa D. Kahn
Judge David Levy
Judge Scott J. Silverman
Judge C. McFerrin Smith, III
Judge Jeffrey D. Swartz
Judge Emerson Thompson
Judge Richard R. Townsend

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)