FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2006-32
Date of Issue: December 18, 2006
1. Is a judicial assistant subject to the code of judicial conduct?
2. Does a judge have an obligation to direct the judge’s judicial assistant not to accept employment cleaning the offices of attorneys who have appeared or are likely to appear before the judge?
3. Must a judge disclose the judicial assistant’s employment to counsel and litigants?
ANSWER: This question should be moot as a result of the answer to issue 2.
The judicial assistant of the inquiring judge desires to supplement her income by cleaning the offices of attorneys after normal working hours. These attorneys have come or are likely to come before the inquiring judge. The judge is concerned about the ethical implications of this contemplated employment.
The foregoing factual scenario raises several ethical issues. First, is a judicial assistant subject to the Code of Judicial Conduct? If not, does a judge have a duty to instruct the judicial assistant to act in a manner consistent with the judge’s ethical duties? Finally, are there circumstances when a judge must disclose to counsel and litigants the after hours work of a judicial assistant?
The Committee on Standards of Conduct Governing Judges, the predecessor to the Judicial Ethics Advisory Committee, opined in Fla. JEAC Op. 91-23 that a judicial assistant was subject to the Code and could not engage in fundraising activities. In Fla. JEAC Op. 92-33, this Committee again opined that Canon 7 applied to judicial assistants so that judicial assistants were precluded from engaging in partisan political activities. However, Fla. JEAC Op. 92-33 was addressed by the Florida Supreme Court in conference on September 8, 1992, and by letter the Court advised this Committee that it was the unanimous opinion of the Court that a judicial assistant may not be prohibited from engaging in partisan political activity during personal time, providing such activity is conducted entirely independently of the judge and without reference to the judge or the judge’s office. See Fla. JEAC Op. 93-45.
In 1995, a majority of this Committee, in Fla. JEAC Op. 95-12, voted to withdraw Fla. JEAC Op. 91-23 and concluded that judicial assistants are not bound by the Code of Judicial Conduct. The Committee indicated that fundraising by judicial assistants is not precluded by the Code if it is done outside the courthouse, outside the assistant’s administrative responsibilities, and is not otherwise in violation of Canon 2B. The Committee suggested that judicial assistants’ conduct should be governed by state ethics law.
In Fla. JEAC Op. 00-08, this Committee cited the Application Section of the Code of Judicial Conduct and confirmed that the Code of Judicial Conduct applies only to judicial officers and quasi-judicial officers and does not apply directly to judicial assistants. Although the Code did not directly preclude judicial assistants from receiving gifts from attorneys, vendors, and third parties, it was the opinion of the Committee that a judge was ethically obligated to instruct court personnel to act in a manner consistent with the judge’s ethical duties and obligations, and suggested that the judge has an ethical obligation to direct the judicial assistant not to accept such gifts. The Committee relied upon Canon 3C(2) which states, “A judge shall require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge...” This opinion was quoted with approval by the Florida Supreme Court in In Re: Luzzo, 756 So. 2d 76 (Fla. 2000).
A judge clearly could not accept outside employment with attorneys who appear before the judge. Such activity is contrary to Canon 2B (“. . . nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge”), Canon 5A (a judge shall conduct all the judge’s extrajudicial activities so they do not: “(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) demean the judicial office . . .”), Canon 5D(1) (a judge shall not engage in financial and business dealings “that (a) may reasonably be perceived to exploit the judge’s judicial position, or (b) involve the judge in frequent transactions or continuing business relationships with those attorneys or other persons likely to come before the court on which the judge serves”), and Canon 5D(4) (“ . . . the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification”).
Since a judge could not accept such after hours employment with a lawyer who appears before the judge, it follows that the judge should not permit a judicial assistant, who is subject to the judge’s direction and control, from engaging in this activity. Employment of the judicial assistant by attorneys who have come or are likely to come before the court, regardless of the nature of the employment, gives an appearance of impropriety and has an adverse impact upon the public perception of the integrity of the court system.
One member of the Committee disagrees with this analysis and believes that this opinion improperly restrains the judicial assistant’s use of personal time after hours. The member suggests that judicial assistants, like family members, should have the freedom to work, campaign, raise funds for charities, give speeches, and otherwise engage in extrajudicial after hours activities so long as the judicial assistant does not demean the judicial office nor involve the judge in any way.
The final issue relates to disclosure and disqualification. Since the judge has an ethical duty to direct the judicial assistant not to accept employment from attorneys who have come or are likely to come before the court, and since the judicial assistant works at the pleasure of the judge, this issue should be moot. In the unlikely circumstance that a judicial assistant is or has recently been employed by an attorney who subsequently appears before the judge, disclosure would be appropriate, because this is information that the parties or their lawyers may consider relevant to the question of disqualification. Whether or not a legally sufficient motion for disqualification could be filed is a matter of law and depends upon the specific circumstances of the case. The test is whether the judge’s impartiality might reasonably be questioned because of the activities of the judicial assistant.
In Fla. JEAC Op. 00-08 this Committee recognized that certain conduct by court employees could create unfortunate appearances or worse. This Committee recommended that in order “to promote, foster, and insure the public’s continued confidence in the integrity of the judicial process,” a code of conduct should be adopted setting forth the ethical standards, duties, and obligations for judicial employees of the State of Florida. Approximately five years ago this Committee, at the request of the Supreme Court, drafted a proposed code setting forth the ethical standards, duties, and obligations for judicial employees and submitted the proposal to the Supreme Court for approval. To date, no such code has been adopted. A majority of this Committee believes that adoption of such a code would be desirable.
Florida Case: In Re: Luzzo, 756 So. 2d 76 (Fla. 2000).
Florida Code of Judicial Conduct, Canons 2B, 3, 5A, 5D(1) and 5D(4).
Florida Judicial Ethics Advisory Committee Opinions: 00-08, 95-12, 93-45, 92-33, & 91-23.
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 Robert T. Benton, II, Chair, Judicial Ethics Advisory Committee, 301 S. MLK Jr. Blvd. Tallahassee, FL 32399.
Judge Robert T. Benton, II, Judge T. Michael Jones, 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, Patricia E. Lowry, 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
Inquiring Judge (Name of inquiring judge deleted from this copy)