FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2007-21
Date of Issue: December 18, 2007

ISSUES

(1)  May a judge be an advisory board member, with or without compensation, for an internet company which will not sell legal services or legal advice but will provide divorce information, such as, where to find a lawyer, appropriate forms at the clerk’s office, a child support calculator, online support groups and chat rooms, psychologists, and counselors?

ANSWER: No.

(2)  May a judge write an informative article about the divorce process to be published on the internet company’s divorce information website?

ANSWER: Yes, so long as the judge is careful not to comment on pending cases, answer hypothetical questions in a way that appears to commit the judge to a particular position, make remarks that could lead to the judge’s disqualification or be construed as indicating how the judge would rule on a case, or lend the prestige of the judicial office to advance the private interests of the web site organizers or others.

FACTS

The Inquiring Judge is considering a position as an advisory board member of a startup internet company, ostensibly for profit, that will provide information to people who are contemplating, going through, or concluding a divorce. Other likely advisory board members include accountants, psychologists, and others who are involved in the divorce process. According to the Judge, the website would not sell legal services nor give legal advice, but it would provide information about where one can go to find a lawyer, the appropriate forms at the clerk’s office, a child support calculator, online support groups and chat rooms, psychologists, and counselors.

The Inquiring Judge would “be the source of information and provide education to the company regarding the divorcing process.” According to the Judge, “No legal advice would be given.” Neither the Judge’s name nor status as a Judge “would be disseminated to the public.” The Judge asserts that those logging onto the website would be unaware of the Judge’s affiliation with it and that local lawyers would be unaware of the Judge’s membership on the advisory committee.

The Judge’s inquiry does not state what the company’s source of revenue will be, that is, whether the company’s organizers intend to derive revenue from pop-ups, banners, or other advertisements on the website; fees from professionals or divorce service providers; or subscription fees from website users. The source of any compensation to the Judge for contributions to the website is likewise not stated.

DISCUSSION

Canon 4 of the Florida Code of Judicial Conduct, which addresses a judge’s quasi-judicial activities, is entitled, "A Judge is Encouraged to Engage in Activities to Improve the Law, the Legal System, and the Administration if Justice." Canon 4A  provides:

A judge shall conduct all of the judge's quasi-judicial activities so that they do not:
(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.

Canon 5A contains the same language related to the judge’s extrajudicial activities. [Emphasis supplied.]  The Commentary to Canon 4A recognizes 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, “A judge is encouraged to speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch within our system of government, subject to the requirements of this Code.” Canon 5B states, “A judge is encouraged to speak, write, lecture, teach and participate in other extrajudicial activities concerning non-legal subjects, subject to the requirements of this Code.” [Emphasis supplied.]

The Commentary to Canon 4B points out 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 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.

The phrase “subject to the requirements of this Code” found in both Canons 4B and 5B is included to remind judges that the use of permissive language in various sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct.  Fla. Code Jud. Conduct, Commentary to Canons 4B, 5B.

Canon 5C(3) directs that “[a] judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal or civic organization not conducted for profit” unless the organization likely will be engaged in proceedings that would come before the judge or engaged frequently in adversary proceedings in the court of which the judge is a member or has appellate jurisdiction. [Emphasis supplied.] However, Canon 5D(3) prohibits a judge from serving at all as an officer, director, manager, general partner, advisor, or employee of any business entity, with limited exceptions not applicable to this inquiry.  Thus, the judge may not serve as an advisory board member of the organization, with or without compensation.

Canon 5D(1) provides that a judge shall not engage in business dealings that may reasonably be perceived to exploit the judge’s judicial position. The Committee is concerned that Canon 5D(1) will be implicated if the internet company plans to exploit the Judge’s position for the Judge’s personal gain or that of the internet company organizers. For example, it would appear that Canon 5D(1) would be violated by the use of the Judge’s comments on the website, or support of it, to enhance the use of the website or the status or reputation of any of the divorce professionals listed on the site.

Since the company’s organizers intend to profit from advertisements, referrals, or subscriptions, the Committee also believes the activity could run afoul of Canon 2, which requires a judge to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Further, Canon 2B provides that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” This has been construed by the Committee to prohibit “tacit endorsements” of business products and services. See Fla. JEAC Ops. 97-29 (judge’s appearance in a promotional sales video attesting to the usefulness of a company’s video conferencing equipment prohibited as lending the prestige of the judge’s office to advance the private interests of others); 82-01 (improper for a judge’s name to appear on stationery and brochures explaining and promoting the use of a dispute conciliation service); 97-16 (finding that 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).

In Florida JEAC Opinion 07-09, the Committee opined that a judge could permissibly participate in a panel discussion as part of a legal seminar sponsored by a private organization, so long as the judge’s participation was educational in nature and did not endorse products or materials offered by that organization. The Committee also concluded the judge may receive compensation for expenses and an honorarium, subject to the guidelines set forth in Canon 6. The Committee cautioned the judge that while the sponsoring organization could include the judge’s name and biographical information in its promotional materials for the seminar, it must be done in a dignified manner and it must not imply the judge’s endorsement of any products or services of the organization.

Canon 5D(1) further directs that a judge shall not engage in business dealings that may involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves. The Committee is concerned that in the organization and administration of the internet company the judge will be involved with persons likely to come before the court on which the judge serves, such as lawyers or other divorce professionals associated with the internet company or referred by the company’s website.

The Committee has consistently concluded that a judge does not violate the Code of Judicial Ethics by lecturing or writing articles on the law, court procedure, or law-related areas.  See Fla. JEAC Ops. 06-30 (no impropriety in judge’s addressing various community groups regarding the dangers of online predators); 95-21 and 87-3 (finding no impropriety in a judge lecturing at legal seminars); 82-06 (judge may lecture to group of non-attorneys interested in landlord-tenant law); 04-17 (judge can be interviewed by textbook publisher for website publication of educational video to college students regarding criminal justice system); 04-27, 00-05, 99-14, 95-37, 82-05, 78-12, and 76-17 (approving judges writing articles on a variety of topics).

The Committee has approved judges writing newspaper columns about the courts or the law which contribute to the improvement of the legal system and the administration of justice. See Fla. JEAC Ops. 99-14 (column on judicial system for local newspaper); 95-37 (column concerning the issue of attorney's fees for publication  in the Daily Business Review); 77-21 (informational column concerning the function of a county court judge, ways of improving the administration of civil and criminal justice in county court in weekly newspaper).

Further, the Committee has found a judge's commercial writing is permitted generally. See Fla. JEAC Ops. 76-17 (judge authored procedural manual for publication and sale); 78-12 (judge co-authored with a lawyer procedural manual to be sold by commercial publisher with compensation to the authors); 82-05 (judge privately published book to teach parents to teach their children the consequences of crime). The fact that the proposed publication would be digital rather than ink is of no material consequence.

We caution the Inquiring Judge, however, to be careful not to comment on pending cases, not to answer hypothetical questions in a way that appears to commit to a particular position, and not to make any other remarks that could lead to the Judge’s disqualification, or be construed as an indication as to how the Judge would rule in a particular case. See Fla. JEAC Ops. 05-11; 04-27; 00-02; 99-14.

Thus, the Inquiring Judge may write an informative article about the divorce process to be published on the internet company’s divorce information website, so long as the judge’s article is educational in nature and does not imply the judge’s endorsement of any products, persons, services, or materials.  The judge may receive compensation for the article, subject to the guidelines set forth in Canon 6.   

The Committee reminds the Inquiring Judge of the Commentary to 4D(1), which counsels, "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."

Finally, the Judge submits that neither the Judge’s name nor status as a judge would be disseminated to the public and asserts those logging onto the website would be unaware of the Judge’s affiliation with it.  This might ameliorate the problem of improperly “lending the prestige of the judicial office” to the venture. However, the Committee believes that ultimately the propriety of a judge’s conduct is not dependent upon whether the judge’s status as a contributor is known or unknown to the Bar or the public.

REFERENCES

Fla. Code Jud. Conduct, Canons 2A, 2B, 4, 4A, 4B, 4D, 5A, 5B, and 5C, 5D.

Florida Judicial Ethics Advisory Committee Opinions:  76-17, 77-21, 78-12, 82-01, 82-05, 82-06, 87-3, 89-14, 95-21, 95-37, 97-16, 97-29, 99-14, 00-02, 00-05, 00-09, 01-07, 03-17, 04-17, 04-27, 05-09, 05-11, 06-23, 06-30, 07-09.

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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 Judge Lisa Davidson, Chair, Judicial Ethics Advisory Committee, The Moore Justice  Center, 2825 Judge Fran Jamieson Way, Viera, FL 32940.

Participating Members:
Judge Robert T. Benton, II, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Judge Michael Raiden, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, Judge, Judge Richard R. Townsend, Judge Dorothy Vaccaro, Marjorie Gadarian Graham, Esquire & Patricia E. Lowry, 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)