FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2010-04
Date of Issue: March 19, 2010
Whether the Inquiring Judge should require the judge’s judicial assistant to refrain from adding lawyers who may appear before the judge as “friends” on a social networking site.
ANSWER: No, so long as the activity is conducted entirely independent of the judge and without reference to the judge or the judge’s office.
In light of the recent JEAC Op. 09-20 which recommends that judges refrain from adding lawyers who are likely to appear before the judge as “friends” on a social networking site, the Inquiring Judge is asking if this also applies to the judge’s judicial assistant.
Several opinions clearly hold that judicial assistants are not subject to the Code of Judicial Conduct. See JEAC Op. 95-12 (where a majority of the Committee believed that the Code of Judicial Conduct did not apply to judicial assistants for seeking donations and fund-raising activities outside the courthouse and outside their administrative duties); Op. 93-45 (law clerks not bound by Code of Judicial Conduct when engaged in partisan political activity during their personal time).
While the Code may not apply directly to judicial assistants, it may indirectly impact them and their duties. In JEAC Op. 00-08, the Committee recommended that the judge direct its court employees, including judicial assistants, to not accept gifts. The Committee explained that “the acceptance of such gifts places the fidelity and the integrity of the court into serious question.” JEAC Op. 00-08; see also Canon 3C(2), Fla. Code of Jud. Conduct. Furthermore, in Op. 06-32, the Committee opined that a judicial assistant should not accept employment cleaning offices of attorneys who have appeared or were likely to appear before the judge. That conduct, coupled with the monetary implications, “gives an appearance of impropriety and has an adverse impact on the public perception of the integrity of the court system.” JEAC Op. 06-32; see also Canon 2B, Fla. Code of Jud. Conduct.
In JEAC Op. 09-20, the Committee recommended that a judge not add lawyers who may appear before the judge as “friends” on a social networking site, nor allow lawyers to add the judge as their “friend.” The Committee believed “that listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.” Canon 2B.
The concern presented in this inquiry is whether a judicial assistant adding a lawyer as a “friend” on a social networking site indirectly conveys the message that the attorney, who may appear before the judge, has a special position to influence the judge. The mere fact that personal information is being disseminated between the judicial assistant and a lawyer on the social networking site does not adversely impact the public perception nor compromise the integrity of the court system. Prohibiting the judicial assistant from expressing himself/herself outside the courthouse infringes upon his/her First Amendment freedoms. This form of expression by judicial assistants is not contemplated in our Canons and therefore not a violation of Canon 2B.
As long as a judicial assistant utilizes the social networking site outside of the judicial assistant’s administrative responsibilities and independent of the judge, thereby making no reference to the judge or the judge’s office, this Committee believes that there is no prohibition for a judicial assistant to add lawyers who may appear before the judge as “friends” on a social networking site.
However, a judge would continue to have the responsibility under Canon 3C(2) to “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. . . .” Therefore, in the unlikely event that a lawyer attempts an ex-parte communication through the social networking site, the judge should direct the judicial assistant to immediately “de-friend” the lawyer and to immediately report it to the judge.
Fla. Code Jud. Conduct, Canons 2B and 3C(2)
Fla. JEAC Op. 93-45, 95-12, 00-08, 06-32, 09-20
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 a 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. See 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. See Id.
The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside. This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.
For further information, contact: Judge T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida 32502.
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge C. McFerrin Smith III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.
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)