FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 2001-12
Date of Issue: May 21, 2001

ISSUES

MAY AN APPELLATE COURT JUDGE ALLOW THE JUDGE'S LAW CLERK TO SERVE ON THE BOARD OF DIRECTORS AT FLORIDA LEGAL SERVICES?

ANSWER: Yes, subject to certain conditions.
FACTS

A law clerk who works for the inquiring judge has applied to fill a vacancy on the Board of Directors at Florida Legal Services. The inquiring judge states that since 1974, Florida Legal Services has handled only two cases in the judge's appellate district. The Board was formed in 1972 by The Florida Bar to primarily act as a statewide focal point to expand the availability of legal assistance to the poor in Florida. The inquiring judge states, "the Board of Directors of Florida Legal Services is responsible for the long-range planning of the organization and its various projects, and has no involvement in the day to day operations of the handling and disposition of individual cases."

DISCUSSION

The Code of Judicial Conduct does not directly apply to law clerks. See Fla. JEAC Op. 97-3. Nevertheless, the Code of Judicial Conduct requires that a judge "shall require staff, court officials, and others subject to the judge's discretion and control to observe the standards of fidelity and diligence that apply to the judge . . . ." Fla. Code Jud. Conduct, Canon 3C(2). Thus, this Committee has observed in Opinion 97-3 that the Code applies indirectly to law clerks.

In Opinion 74-17, this Committee stated that a judge may not be a director of the local Legal Aid Society because such service would tend to convey an appearance of partiality by the judge toward the attorneys of that organization. In Opinion 86-16, the Committee somewhat modified its stance with regard to a judge's service as a director of a legal aid society. The Committee stated:

[I]f the Legal Aid Society engages in litigation directly or represents impoverished people through the use of staff counsel, . . . continued service on the Board would be prohibited by [former] Canon 5B(1). On the other hand, if the Legal Aid Society acts only as an administrative body to assign cases to lawyers on a pro bono basis, and does not make policy decisions of political significance or that may imply commitment to causes that may come before the courts for adjudication, that [former] Canon 5B(1) would not preclude . . . continued service as a trustee.

This Committee recognizes that Florida Legal Services may not be directly analogous to a Legal Aid Society. Nevertheless, the statement of this Committee in Opinion 86-16 should be followed in the present inquiry. Therefore, so long as Florida Legal Services does not engage directly in litigation or represent impoverished people, the service covered by the present inquiry would be permitted for the law clerk. The facts provided by the inquiring judge indicate that service on the Board of Florida Legal Services is within the limitations of Opinion 86-16.

Pursuant to Canon 4D of the Florida Code of Judicial Conduct, a judge may serve as an officer or trustee of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice, provided that a judge shall not serve as an officer or trustee if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge, or will be engaged frequently in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court in which the judge is a member. Accordingly, the inquiring judge must exercise reasonable care to see that the law clerk adheres to the directives of Canon 4D.

The ability to serve is potentially tempered also by Canon 4D(2) and both the inquiring judge and the law clerk should study this Canon closely. Generally, this Canon forbids a judge, who is otherwise authorized to serve an organization, from personal participation and solicitation of funds or membership if such action might reasonably be perceived as coercive.

REFERENCES

Code of Judicial Conduct: Canons 3C(2), 4D, 4D(2).

Florida Judicial Ethics Advisory Committee Opinions: 97-3, 86-16, 74-17.

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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 Phyllis D. Kotey
Judge David Levy
Judge Scott J. Silverman
Judge C. McFerrin Smith, III
Judge Jeffrey D. Swartz
Judge Emerson Thompson
Judge Richard R. Townsend
Marjorie Gadarian Graham, Esquire

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)