FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-34
Date of Issue: September 24, 2004

ISSUES

May a recently elected judge continue to sit as a member of The Florida Bar Board of Governors until the judge's term expires?

ANSWER: Yes.

FACTS

The inquiring judge-elect is currently a member of The Florida Bar Board of Governors. The judge-elect was elected without opposition in May of 2004, for a judicial term beginning on January 3, 2005. The judge-elect inquires as to whether the judge may continue to serve as a member of The Florida Bar Board of Governors for the remainder of the term, which expires in June 2005.

DISCUSSION

A similar issue was addressed by this committee in Fla. JEAC Op. 03-02. This committee opined that it was proper for a recently elected judge to remain a member of the executive council of the trial lawyers section of The Florida Bar, to chair committees of The Florida Bar, and to remain a member of the American Board of Trial Advocates. This committee cited with approval Fla. JEAC Op. 84-13 (Judge serving as Chair-Elect of the Family Law Section of The Florida Bar) and Fla. JEAC Op. 99-20 (Judge serving on The Florida Bar Civil Procedure Rules Committee).

Canon 4 provides that "A judge may engage in activities to improve the law, the legal system, and the administration of justice." Canon 4A stipulates that "A judge shall conduct all of the judge's quasi-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties." The Commentary to Canon 4A points out that "A judge is encouraged to participate in activities designed to improve the law, the legal system, and the administration of justice."

Canon 4B provides that "A judge may speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, and the administration of justice, subject to the requirements of this Code." The Commentary to Canon 4B recognizes that "As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including, but not limited to, the improvement of the role of the judiciary as an independent branch of government, the revision of substantive and procedural law, the improvement of criminal and juvenile justice, and the improvement of justice in the areas of civil, criminal, family, domestic violence, juvenile delinquency, juvenile dependency, probate and motor vehicle law. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law."

Canon 4D provides in pertinent part that: A judge may serve as a member, officer, director, trustee or non-legal advisor of an organization or government agency devoted to the improvement of the law, the legal system or the administration of justice, subject to the following limitations and other requirements of this Code:
(1) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization

(a) Will be engaged in proceedings that would ordinarily come before the judge, or

(b) 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 of which the judge is a member.

Along with the stipulation outlined in Canon 4D (1) (b), the Commentary to Canon 4D (1) sets forth a caveat for judges participating in organizations devoted to the improvements of the law as in the issue at hand. The Commentary cautions that "The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation. For example, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication." Canon 5 provides that "A judge shall regulate extrajudicial activities to minimize the risk of conflict with judicial duties."

Canon 5A requires that "A judge shall conduct all of the judge's extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially; demean the judicial office; or interfere with the proper performance of judicial duties."

Although the foregoing Canons encourage bar activity such as contemplated by the inquiring judge, there is a distinction between continued service on the board until the expiration of the term and the judge seeking re-election for another term in June 2005. This committee has addressed this issue in a number of opinions. In Fla. JEAC Op. 79-15, the Committee unanimously held that a judge could not run for president of a bar association stating " that a judge places himself in a position where he must ask for votes or support from lawyers. The question will inevitably be raised whether the judge is exerting pressures on lawyers who must litigate before him. This gives the appearance of impropriety." In Fla. JEAC Op. 94-44 the Committee unanimously opined that "in any bar election, especially against a lawyer opponent, the question would be raised whether the judge was exerting "subtle pressure" on lawyers who must litigate before him or her. Additionally, conflicts may arise between the interests and demands of the bar and the judiciary that may present difficulties for a judge purporting to act in an elected, representative capacity for members of the bar. Because Canon 4 encourages judges to engage in activities to "improve the law, the legal system and the administration of justice," the Committee believes that a judge may ethically serve as an appointed chair of a local bar association committee. However, a host of potential ethical dilemmas may arise when judges run for office in local bar associations." Although the instant inquiry deals with The Florida Bar, rather than a local bar association, the committee finds no relevant distinction between the two.

In conclusion, the inquiring judge-elect may continue to be a member of The Florida Bar Board of Governors until the judge's term expires in June 2005, but may not seek re-election. The judge may serve so long as participation on the board does not cast reasonable doubt on the judge's capacity to act impartially or interfere with the proper performance of judicial duties, together with recognition of the necessity to periodically re-evaluate the status of the judge's affiliation with the board.

REFERENCES

Florida Code of Judicial Conduct: Canons 4, 4A, 4B, 4D, 5 and 5A.
Fla JEAC Ops.: 79-15, 84-13, 94-44, 99-20 and 03-02.

_____________

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 Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Melanie May, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)