FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-31
Date of Issue: September 8, 2010

ISSUE

Whether the Chief Judge of a circuit can properly send a letter to “Members of the Bar,” soliciting lawyers’ participation in the “One Campaign” of The Florida Bar.

ANSWER: Yes.

FACTS

The inquiring judge, who is the Chief Judge of a circuit, has been asked to send a letter to “Members of the Bar” as part of The Florida Bar's “One Campaign.” This campaign and proposed letter of support would encourage attorneys to join or participate in the Bar’s “One Campaign” by donating pro bono legal services. The proposed letter also refers to a potential monetary donation to a legal aid organization as an alternative to service.

DISCUSSION

Canon 4 controls our answer to this Inquiry. It addresses judges’ quasi-judicial activities and is titled:  “A Judge is Encouraged to Engage in Activities to Improve the Law, the Legal System and the Administration of Justice.” Since urging lawyers to take a pro bono case or contribute a monetary alternative is somewhat of a hybrid of fundraising and membership solicitation, both will be briefly discussed here.

A. FUNDRAISING.

For many years, the Code of Judicial Conduct prohibited judges from engaging in most activities involving fundraising, regardless of the type of organization involved. However, on May 22, 2008 the Florida Supreme Court amended Canons 4 and 51, Florida Code of Judicial Conduct, in In Re: Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008). 

These 2008 changes to the Code have carved out significant exceptions to the prior prohibition2 on judges participating in fundraising activities on behalf of a specific category of organizations. The new rule applies only if the following four conditions are met:

1. The organization is devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice, and
2. The fundraising event concerns the law, the legal system, or the administration of justice, and
3. The funds raised will be used for a law related purpose, and
4. Participation in such activities would not cast doubt on the judge’s capacity to act impartially as a judge and is consistent with other provisions of the code.

The prohibition on fundraising still applies to such activities for other organizations or purposes. See, Canon 4D(2)(b).

B. MEMBERSHIPS.

The Commentary to Canon 4D(2) states:

 “A judge may solicit membership or endorse or encourage membership efforts for an organization devoted to improvement of the law, the legal system or the administration of justice as long as the solicitation cannot reasonably be perceived as coercive. Personal or direct solicitation of funds for an organization and personal or direct solicitation of memberships involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control.”

The same paragraph of the Commentary further provides that a judge may engage in direct, individual membership solicitation, in person, in writing or by telephone, for law related organizations, only if the persons solicited or persons with whom they are affiliated are not likely to ever appear before the court on which the judge serves3. This latter provision would preclude a judge’s personal or direct solicitation of most lawyers. See, JEAC Op. 2009-15. A letter to “Members of the Bar,” as proposed here, is a general solicitation, not direct or individual.

The onus is on the judge who agrees to participate in activities pursuant to Canon 4D(2) to determine that none of the prohibitions in Canons 4A (1)-(6) exist and that the conditions, described above, are met. The judge also has a continuing obligation to remain vigilant that none of the prohibitions in Canon 4A(1)-(6) are violated.  If the judge becomes aware that any of these prohibitions are being violated, then the judge must take corrective action, which may include withdrawing from participation in the event. JEAC Op. 2008-17.

“Support of pro bono legal services by members of the bench is an activity that relates to improvement of the administration of justice. Accordingly, a judge may engage in activities intended to encourage attorneys to perform pro bono services…” Commentary to Canon 4B.

This Committee is of the opinion that the inquiring judge’s proposed letter of support for the “One Campaign” of The Florida Bar is precisely the type of judicial conduct the 2008 amendments to the Code were intended to permit.

REFERENCES

Cases: In Re: Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008).

Fla. Code Jud. Conduct, Canon 4, Canon 4A(1)-(6), Canon 4D, Canon 4D(2), Canon 4D(2)(b), Canon 4D(2)(d), Canon 5.

Fla. JEAC Ops. 2000-06, 2008-17, 2009-15.

_____________

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 Kerry I. Evander, Chair, Judicial Ethics Advisory Committee, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida  32114-5002.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge José Rodriguez, 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)

1 Canon 5 does not apply to this inquiry and is not discussed in this opinion.

2 In JEAC Op. 2000-06, this Committee concluded that, under the 2000 version of the Code, a judge could not author a letter for a legal services organization soliciting membership or $350 in lieu of services because the Code of Judicial Conduct prohibits a judge from soliciting memberships and fund-raising.

3 The only exceptions in Canon 4D(2) are: a judge may solicit funds or memberships from other judges over whom the judge does not exercise supervisory or appellate authority; a judge may solicit memberships from other persons for these law related organizations if neither the person solicited, nor persons with whom they are affiliated, are likely to ever appear before the judge; a judge who is an officer of a 4D(2) organization may send a general membership solicitation mailing over the judge’s signature.