FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-05
Date of Issue: March 10, 2006

ISSUES

I. Whether a judge who sits on a charitable organization’s “advisory board of directors,” may allow his name and position to be listed on the charitable organization’s letterhead, along with the names and positions, if any, of all of the other board members.

ANSWER: Yes.

II. Whether a judge can also be a member of the bars of the United States District Court  for the Middle District of Florida and United States Court of Appeals for the Eleventh Circuit, albeit without practicing in federal court while on the state bench.

ANSWER: Yes.

III. Whether a judge can remain a Certified Circuit Court Mediator, albeit without practicing as a mediator while on the bench.

ANSWER: Yes.

FACTS

The inquiring judge is a member of an unspecified charitable organization’s “advisory board of directors.” The organization’s letterhead is used for all its correspondence, including correspondence that solicits charitable gifts. The judge asks whether he can be listed on the organization’s letterhead along with other board members, and identified as a judge.     

The judge also asks whether there is any impropriety in remaining, after taking the bench, a member of the bars of the United States District Court  for the Middle District of Florida and United States Court of Appeals for the Eleventh Circuit and retaining certification as a Certified Circuit Court Mediator, without practicing as a mediator while on the bench.

DISCUSSION

The commentary to canon 5C(3)(b) states: "Use of an organization letterhead for fund-raising or membership solicitation does not violate Section 5C(3)(b) provided the letterhead lists only the judge's name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge's judicial designation."
          
The inquiring judge in JEAC Opinion 96-4, was a member of the executive board of a charitable organization.  That judge asked if “my name and designation as judge” could “appear on the organization’s letterhead.” The Committee agreed “that there should be no problem with your name appearing on the letterhead, even when it is used for fundraising,” although the Committee specified that the organization should “prepare[] its letterhead in compliance with” the commentary to Canon 5.  See also JEAC op. 95-34.
         
Although a judge “could not engage in direct solicitations,” the judge’s name may “be used on stationery, which, incident[al]ly, was used by other members of the [organization] to solicit funds.”  Fla. JEAC Op. 81-4See Fla. JEAC Op. 99-22.
 
As for federal bar memberships, the inquiring judge apparently poses a question of first impression for the Committee.  Perhaps the Supremacy Clause has been seen as placing the conditions for membership in the bar of a federal court beyond the reach of state authorities. See generally U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995).
          
In any event, the Committee sees no impediment in the Code of Judicial Conduct to a state judge’s remaining a member of a federal bar.  Judges are, after all, encouraged to serve as members of any “organization . . . devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice,” a category in which the federal bars may fall.  Canon 4D, Fla. Code Jud. Conduct.
          
Maintaining bar membership is one thing, but actually appearing as an advocate in court, state or federal, is another.  With qualifications not pertinent here, “[a]ll justices and judges . . . shall not engage in the practice of law.”  Art. V, § 13, Fla. Const.   
          
Again with the understanding that a sitting judge so certified should not actually serve as a mediator in cases not before the judge (except for training purposes), see Fla. JEAC Ops. 97-15, 97-5 and 96-7, the inquiring judge may also maintain certification as a Circuit Court Mediator.  See Canon 5F (“A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law or Court rule.”).  A judge not yet certified “may . . . take the necessary educational and training courses required to be a qualified . . . mediator, and may fulfill the requirements of observing and conducting actual . . . mediation proceedings as part of the certification process, provided such program does not, in any way, interfere with the performance of the judge’s judicial duties.”  Id. See In re Code of Judicial Conduct, Canon 5F, 695 So. 2d 352 (Fla. 1997).  “However, a retired judge may mediate cases and still be recalled to judicial service since a retired judge subject to recall is not bound by Canon 5F.”  Fla. JEAC Op. 99-16.

With the consent of the parties, moreover, a judge may mediate in order to facilitate settlement of matters pending before the judge in the judge’s official capacity.  Canon 3B(7)(d) (“A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.”).

REFERENCES

Florida Constitution: Art. V, § 13.

Cases: U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995).

In re Code of Judicial Conduct, Canon 5F, 695 So. 2d 352 (Fla. 1997).         

Code of Judicial Conduct: Canons 3B(7)(d), 4D, 5F and Commentary to Canon 5C(3)(b).

Florida Judicial Ethics Advisory Committee Opinions: 99-22, 99-16, 97-15, 97-5, 96-7, 96-4, 95-34 & 81-4.

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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 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, Ervin Gonzalez, Esquire, Marjorie Gadarian Graham, Esquire, Judge Michael Raiden, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III,  Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, and Judge Dorothy Vaccaro.

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)