FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-12
Date of Issue: September 13, 2005

ISSUES

Whether a judge may produce and narrate a video in which the judge requests “help,” “support,” and that viewers “assist” in a project to restore a courtroom, where the video is for use by members of the bar seeking general--including financial--support for the project, if the video does not depict the judge’s image, but does identify the judge as the narrator in the credits.

ANSWER: No, if the video is to be shown to persons other than fellow judges over whom the inquiring judge has no supervisory or appellate authority, because a judge should not permit the prestige of judicial office to be used for fundraising.

FACTS

As a circuit’s “administratively designated court historian,” the inquiring judge is spearheading a project with several members of the local bar to restore an historic courtroom to its original condition.

The inquiring judge made the entire transcript of the video narration part of the request for the Committee’s opinion. In part, the inquiring judge says on the video:

In honor of its 75th anniversary, numerous bar associations, judges, lawyers and other community leaders are actively supporting an effort to restore Courtroom . . . to its original . . . condition. We desperately need your support to make this project a reality. You can preserve our legal heritage by taking part in it.
. . .

Today, acoustic tiles completely obscure the beautiful . . . painted plaster walls. The magnificent lamps, wall sconces, and fans that once adorned the courtroom are gone. Wood is chipped or rotting. Red all-purpose carpeting now conceals the original black and red flooring in well of the courtroom. A dark thick brown paint now coats the carved wooden railings and beams throughout the courtroom.

You can help to change all of this by participating in the courtroom restoration project. You [] can be a driving force in the preservation of our local legal heritage. It will be something to be proud of.

Please join the many members of the . . . Bar Association, . . . and the . . ., along with many others supporters and assist us.

You, too, can make history.

The inquiring judge would not actually exhibit the video, or solicit funds in person. “Rather, members of the bar would like to start showing the video in the near future to explain the project and its needs.”

DISCUSSION

The Committee appreciates having the entire transcript of the narration and feels the inquiring judge has set a commendable example in thoroughly presenting the question on which the inquiring judge seeks an opinion. We are not concerned here with the situation in which a judge anonymously produced a video in which the judge had no other role.

In earlier opinions, the Committee has made clear that a judge should not personally solicit, except from fellow judges over whom the soliciting judge has no supervisory or appellate authority, funds for any organization or cause, however worthy. See Fla. JEAC Op. 03-15. As the Committee said in Fla. JEAC Op. 98-16:

Canon 4D(2)(a) is entitled, “A Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice.” It provides:

A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:
(a) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or other fundraising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority; [emphasis added]

Canon 4D(2)(a) prohibits judges from personally participating in the solicitation of funds or other fundraising activities. See Opinion 95-22 (A judge should not personally participate as a team member of a bingo game at a local Senior Citizen’s Center as a fundraising project for Kiwanis International.); Opinion 94-33 (A judge should not personally solicit funds or permit the use of the prestige of his or her office to solicit funds; and it is improper for a judge to personally solicit “in kind” contributions for the Domestic Violence Task Force); Opinion 92-38 (A judge is ethically precluded from personally collecting coats and gloves to be distributed to those in need by the Salvation Army.).
The concerns of permitting judges to personally solicit funds or donation is clearly described in the commentary to Canon 4D(2), which provides, in apposite part:

Solicitation of funds for an organization and solicitation for memberships similarly involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence and control.

Canon 5 has also been looked to in this connection, and has been deemed to cover more than the actual, personal solicitation of funds. The Committee said in Fla. JEAC Op. 00-06:

In Opinion 88-31, a judge asked whether it was ethical to participate in a fashion show which was a fund-raiser for legal aid. The Committee wrote that “the mere fact that the event has fund-raising as its objective forecloses participation by members of the judiciary,” citing Canon 5B(2).

The inquiring judge in the present inquiry makes the point that personal solicitation is not contemplated. The canons forbid, however, not only personal solicitation, but also other use of the prestige of judicial office for fundraising.

Accordingly, even though the inquiring judge had no intention to solicit funds personally, the Committee is of the opinion that the use of the described video, albeit by others, in soliciting funds from persons (who are not fellow judges over whom the inquiring judge has neither supervisory nor appellate authority) amounts to improper and uncanonical reliance on the prestige of judicial office for fundraising.

REFERENCES

Code of Judicial Conduct: Canon 4D(2)(a), 5 and 5B(2).

Florida Judicial Ethics Advisory Committee Opinion: 88-31, 92-38, 94-33, 95-22, 98-16, 00-06 and 03-15.

_____________

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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Marjorie Gadarian Graham, Esq., Chair, Judicial Ethics Advisory Committee, 11211 Prosperity Farms Road, Oakpark, Suite D129, Palm Beach Gardens, Florida 33410.

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


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