FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2003-06
Date of Issue: June 3, 2003

ISSUES

WHETHER IT IS ETHICALLY PERMISSIBLE FOR A JUDGE TO VOLUNTARILY APPEAR IN A VIDEOTAPE TO BE USED IN A PERSONAL INJURY SETTLEMENT NEGOTIATION.

ANSWER: No.

FACTS

The inquiring Judge once taught karate, and one of his or her students from several years ago was injured in a serious automobile accident which will necessitate extensive therapy. Attorneys for the parents of the injured former student plan to sue an automobile company for an alleged design defect and have requested for the inquiring Judge to appear on a videotape showing the former student's quality of life prior to the accident. On the videotape, the inquiring Judge would comment about the former student and the videotape would be shown to the automobile company as a part of a settlement negotiation, but not at trial. The inquiring Judge queries whether he or she can ethically appear in such a video.

DISCUSSION

The inquiring Judge presents a question that is not easily resolved under the Code of Judicial Conduct. On one hand, Canon 2B of the Code of Judicial Conduct provides that a judge shall not lend the prestige of office to advance the private interests of another. The inquiring Judge's voluntary participation in a videotape will be used in settlement negotiations of a personal injury lawsuit and will advance the private interests of the inquiring Judge's former karate student. On the other hand, judges participate in activities that have no relationship to their judicial duties like teaching karate. In this light it can be argued that the Judge's participation in the video has nothing to do with the Judge's judicial office and therefore, the Judge is not lending the prestige of his or her judicial office to advance the private interests of another.

Ultimately, judges must accept that they are judges twenty-four hours each day. Although the attorneys for the Judge's former student may want to use the inquiring Judge in this video strictly because of the Judge's role as his former karate instructor, the Judge nevertheless is voluntarily aiding this plaintiff in seeking compensation in an adversary process.

In Florida JEAC Opinion 2003-04 the Committee permitted a judge to give non-testimonial interviews about factual matters to either or both sides in a civil case regarding issues that the judge has first-hand knowledge or that may be relevant to a matter in litigation or that may be potentially in litigation. Giving non-testimonial interviews so that parties can determine what, if any, relevant information a judge has about a matter is far different than a judge voluntarily participating in a lawsuit by appearing in a videotape that will significantly aid one party or the other to advance his or her cause.

With the exception of one Committee member, all responding Committee members agree that the inquiring Judge may not ethically participate in this videotape showing the quality of life of his or her former karate student before the student was injured in an automobile accident.

The one dissenting Committee member stated that if the inquiring judge is not referred to as a judge, is not wearing a robe, and he or she makes no reference to his or her other judicial office in the video, the judge is not using the prestige of his or her office in violation of Canon 2B.

REFERENCES

Fla. Code Jud. Conduct, Canon 2B.

Florida Judicial Ethics Advisory Committee Opinion: 03-04.

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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 The Honorable Phyllis Kotey, Chair, Judicial Ethics Advisory Committee, Eighth Judicial Circuit, Alachua County Courthouse, 201 East University Avenue, Room 205, Gainesville, Florida 32601.

Participating Members:
Judges Davidson, Kahn, Kotey, May, Townsend, Rodriquez, Silverman, Smith, Swartz, Thompson and Attorneys Graham and Gonzalez


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)