FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-14
Date of Issue: June 8, 2006

ISSUES

May a judge permit the owner of a documentary film about a reading instruction program to use an interview of the judge in the documentary film when the documentary film will be marketed commercially and will be used in a marketing campaign for a reading instruction program?

ANSWER: No.

FACTS

The producer of an independent production company filmed a documentary about (a) a successful literacy initiative for incarcerated youth in San Diego, and (b) a successful literacy initiative implemented in a Pueblo, Colorado public school district.  Both programs use a particular commercial method of reading instruction.  The documentary film does not promote the particular method of reading instruction, but does indicate that both the court initiative and the school initiative using it have been successful. 

          The inquiring judge was interviewed for the documentary film, and appears in it.  The judge did not endorse the particular reading method in question in the interview, but instead simply talked about literacy as an issue of public health and safety and about the importance of identifying and remediating dyslexia at an early age. 

To date, the documentary film has not been marketed commercially.  When interested persons inquired about it, the producer made copies available at the producer’s own cost.  The producer has now sold the rights to the documentary film to the company that publishes the materials to be used in the reading instruction program.  There are now plans to distribute the documentary film in a marketing campaign for the reading instruction program.  To defray the costs of making copies of the video, the publishing company will be marketing the documentary film commercially.  The inquiring judge has been asked to allow the new owner of the documentary film to retain the interview of the judge in the documentary film.  The question presented is whether the inquiring judge may give permission to use the interview of the judge under the circumstances presented.

DISCUSSION

Canon 2B of the Code of Judicial Conduct provides that “[a] judge shall not lend the prestige of judicial office to advance the private interests of . . . others . . . .” 
         
          In JEAC Opinion 97-29, the Committee concluded that Canon 2B prohibited a judge from appearing in a promotional sales video attesting to the usefulness of a company’s video conferencing equipment.  Although the judge was not providing a direct endorsement of the video conferencing equipment, the Committee found that “it is abundantly clear that a judge, who appears in a promotional sales video and provides a testimonial for viewing by prospective customers, is at the very least tacitly endorsing the product.”  The Committee found that such conduct was impermissible and contrary to the dictates of Canon 2B, because it lends the prestige of the judge’s office to advance the private interests of others.  See also JEAC Op. 93-34 (determining that a proposed advertisement containing an endorsement by a judge of a real estate development violated Canon 2B as it lent the prestige of judicial office to benefit the private interest of others); JEAC Op. 82-01 (finding that it was improper for a judge’s name to appear on stationery and brochures explaining and promoting the use of a dispute conciliation service). 
         
In JEAC Opinion 00-15, the Committee determined that a judge could not tape public service announcements for non-profit organizations, even though the announcements would not solicit volunteers or contributions, but instead would only advise the public of the existence of the organizations and the projects that they offer.  The Committee found that, although there was no direct solicitation of funds or membership on these taped public service announcements, the judge’s participation was “at the very least tacitly lending the prestige of the judge’s office to advance the solicitation of funds and/or membership.”  The Committee noted that there was a potential that the announcements could be used in the future to solicit funds and/or membership, and therefore found that the appearance of the judge in such a video would provide a potential contradiction of the dictates of Canon 2B (as well as the dictates of Canon 5C(3)(b)(iii), which pertains specifically to non-profit organizations).  See also JEAC Op. 97-16 (finding that a judge was prohibited from endorsing a local newspaper program in which the newspaper provided newspapers and law related curriculum materials to local students, because the endorsement would be an endorsement not only of the program and the curriculum, but also of the newspaper, which is a commercial endeavor); JEAC Op. 95-44 (finding that a judge could not write a “positive letter about his education at a local high school” where the letter would then be used to promote business concerns in the neighborhood of the high school). 
          The Committee concludes that if the judge were to permit the interview to appear in a documentary that is being used in a marketing campaign to promote a particular method of reading instruction, giving such permission would violate Canon 2B.  Even though the judge does not specifically endorse the reading instruction method being marketed in the interview, the judge’s appearance in a documentary which is now to be used as a marketing tool would constitute a tacit endorsement of the reading method being marketed.  This would lend the prestige of the judge’s office to advance the private interests of others, and accordingly violate Canon 2B.

REFERENCES

Fla. Code Jud. Conduct, Canon 2B

Fla. JEAC Ops: 00-15; 97-29; 97-16; 95-44; 93-34; 82-01.

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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 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)