FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-05
Date of Issue: March 19, 2010

ISSUE

Whether a candidate for judicial office may add lawyers who may appear before the candidate, if elected judge, as “friends” on a social networking site, and permit such lawyers to add the candidate as their “friend”.

ANSWER: Yes.

FACTS

A candidate for judicial office asks whether our Opinion 09-20, specifically Question 2 of that opinion concerning whether a judge may designate a lawyer who may appear before him or her as a “friend” on Facebook or similar social networking sites, applies to candidates as well as judges.

DISCUSSION

Although the Code of Judicial Conduct is unambiguous with respect to its identification of those provisions which apply to candidates for the judiciary, the Committee takes this opportunity to answer the candidate’s inquiry in order to provide guidance to all candidates in future elections.

Although Opinion 09-20 discusses conduct of committees of responsible persons who conduct campaigns on behalf of candidates for judicial office, the portion of the opinion to which the inquiring candidate refers was based on Canon 2B of the Code of Judicial Conduct. As noted by the candidate in the inquiry to this Committee, the Supreme Court of Florida, in its opinion in In re: Kinsey, 842 So.2d 77 (Fla. 2003), held that Canon 7 of the Code of Judicial Conduct is the only canon applicable to candidates for judicial office. 

In In re Amendment to Code of Judicial Conduct - American Bar Association’s Model Code of Judicial Conduct, 918 So.2d 949 (Fla. 2006), the Court amended Canon 3E to refer to, but not govern, conduct by candidates. This amendment added Subsection (1)(f) to the list of reasons why a judge must enter an order of disqualification.  The amendment provides that a judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: … (f) the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to: (i) parties or classes of parties in the proceeding; (ii) an issue in the proceeding; or (iii) the controversy in the proceeding.” [Emphasis supplied].

Thus, although Canon 7 contains the requirements and prohibitions which govern the conduct of a candidate for judicial office during a campaign, Canon 3E(1)(f) identifies conduct which, if engaged in during a campaign, may result in disqualification, if the candidate is thereafter elected a judge.   

Therefore, because our answer to Question 2 in Opinion 09-20 was based solely on Canon 2B of the Code of Judicial Conduct, and did not rely on Canon 7 or Canon 3E(1)(f), the guidance provided in Question 2 of that opinion, regarding a judge’s designation of friends on Facebook, does not apply to judicial candidates.

REFERENCES

Fla. Code Jud. Conduct, Canons 3E(1)(f) and 7
Fla. JEAC Op. 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.

Participating Members:
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)