FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-11
Date of Issue: August 4, 2011

ISSUE

May a senior judge who has contracted with a mediation group to provide mediation services, permit the mediation group to display the judge's image in its advertisements or to display the judge's image or professional biography on its website.

ANSWER: Yes.

FACTS

The inquiring senior judge is a Florida Supreme Court-certified mediator who has contracted with a mediation group to provide mediation services for compen-sation.  In return, the mediation group provides the facilities to hold mediation conferences and handles all marketing, advertising, calendaring, and billing for its mediators.  The mediation group is not engaged in the practice of law.

The mediation group advertises in various ways and maintains a website.  The advertisements would include the senior judge's name (without the use of the title "judge") and photograph.  The website has a photograph and biographical page for each of the group's mediators.  The senior judge's biographical page would reference the judge's prior judicial experience, but would not use the title "judge," nor disclose the inquiring judge's senior judge status.

DISCUSSION

Canon 5F(2) provides:

A senior judge may serve as a mediator in a case in which the senior judge is not presiding only if the senior judge is certified pursuant to Rule 10.100, Florida Rules for Certified and Court-Appointed Mediators.  Such senior judge may be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services but that are not otherwise engaged in the practice of law.  However, such senior judge may in no other way advertise, solicit business, associate with a law firm, or participate in any other activity that directly or indirectly promotes his or her mediation services. . . . .

Fla. Code Jud. Conduct Canon 5F(2) (emphasis added).

Thus, the Florida Supreme Court has expressly authorized senior judges to be affiliated with entities such as the aforementioned mediation group.  We believe that implicit in such authorization is that senior judges may permit such an entity to disclose the name (and image and biographical information) of such senior judge in its advertising and on its website.  However, a senior judge may not permit the mediation services entity, when referencing the senior judge, to 1) use the title "judge;" 2) disclose the judge's senior judge status; or 3) use a photograph of the senior judge in a judicial robe. To do so would lend the prestige of the judicial office to advance the private interests of the mediation services entity.  See Canon 2B.

Furthermore, to comply with Canon 5F(2) the senior judge may, in no other way advertise, solicit business, or participate in any other activity that would promote his or her mediation services.  See, e.g., JEAC Opinion 2007-12 (senior judge may not personally advertise his or her mediation services even where the advertising did not indicate that the senior judge had ever served as a judge).

REFERENCES

Fla. Code of Jud. Conduct: Canon 5F(2).

Florida Judicial Ethics Advisory Committee Opinion:  2007-12.

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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 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 Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law. The 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: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401.

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 Jose Rodriguez, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and 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)