FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-04
Date of Issue: January 31, 2012

ISSUE

May a judge member of a standing committee of the Supreme Court of Florida directly solicit donations from voluntary bar associations to help defray the costs to print and distribute to judges, the legal community and the public a brochure which the committee drafted about the perception of fairness in Florida’s courts?

ANSWER: No.

FACTS

The inquiring judge is a member of a Supreme Court of Florida standing committee which drafted a brochure about the perception of fairness in Florida’s courts.  The committee wants to distribute the brochure to judges, the legal community and the public but is without sufficient state budgeted funds to defray the printing and distribution costs.  The inquiring judge asks about the propriety of a judge member of the standing committee directly soliciting donations from voluntary bar associations to defray these expenses.

DISCUSSION

Canon 4 of Florida’s Code of Judicial Conduct provides, in pertinent part:

D. A judge is encouraged to serve as a member, officer, director, trustee or non-legal advisor of an organization or governmental entity devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice, subject to the following limitations and the other requirements of this Code.

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(2) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:

(a) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally or directly participate in the solicitation of funds, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;

(b) may appear or speak at, receive an award or other recognition at, be featured on the program of, and permit the judge’s title to be used in conjunction with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice and the funds raised will be used for a law related purpose(s);

(c) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice … (emphasis supplied).

Before May 22, 2008, Canons 4 and 5 of Florida’s Code of Judicial Conduct contained blanket prohibitions that prevented a judge from engaging in fundraising activities in the judge’s quasi-judicial or extra-judicial activities. In 2008, the Supreme Court of Florida amended Canons 4 and 5 of the Florida Code of Judicial Conduct to allow for judicial participation in fundraising in the context of “quasi-judicial activities” and “extrajudicial activities” concerning the law, the legal system, and the administration of justice. In re Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008).  Canon 4D(2) was amended to permit a judge to participate in a fundraising event if the event met two criteria: (1) the event is sponsored by an organization or governmental entity that is devoted to the improvement of the law, the legal system, the judicial branch or the administration of justice, and (2) the event concerns the law, the legal system, or the administration of justice and the funds raised will be used for a law-related purpose. If these two criteria are met, then a judge may “speak at, receive an award or other recognition at, be featured on the program of and permit the judge’s title to be used in conjunction with [a fundraising] event ….” Fla. Code Jud. Conduct, Canon 4D(2)(b). However, even if these criteria are met, Canon 4D(2)(a) prohibits judges from personally or directly participating in the solicitation of funds from anyone except other judges over whom the judge does not exercise supervisory or appellate authority.

The commentary to Canon 4D adds, in pertinent part:

A judge may be a speaker or guest of honor at an organization’s fund-raising event if the event concerns the law, the legal system, or the administration of justice, and the judge does not engage in the direct solicitation of funds.

The first JEAC opinion that addressed amended Canon 4D(2)(b) was JEAC Op. 08-17.  The opinion concluded it was ethically permissible for the inquiring judge to be a speaker at a fundraiser for drug court because the fundraiser fell within the parameters of Canon 4D(2)(b). JEAC Op. 08-17.  This Committee reasoned that drug court is a law-related organization which serves a law related purpose and that the funds would be used for a law-related purpose, for example to help adults in drug court with their addiction problems. Id.

The inquiring judge’s participation as an officer or member of the standing Supreme Court committee is consistent with Canon 4D(2)(b). Such a committee is an “entity devoted to the improvement of the law, the legal system, the judicial branch, [and] the administration of justice.”  Further, the committee’s printing and distribution to judges, the legal community and the public of a brochure about the perception of fairness in Florida’s courts constitute activities concerning the law, the legal system, or the administration of justice, and its use of funds donated or raised to defray printing and distribution expenses constitutes a law related purpose.

Nevertheless, the inquiring judge may not personally or directly participate in the solicitation of funds, no matter how noble the entity or the cause.  It is inconsequential that the object of the judge’s direct solicitation is a voluntary bar association.

Canon 4D(2)(c) permits a judge to make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system, or the administration of justice. This Canon must be read in conjunction with the prohibition in Canon 4D(2)(a) against a judge personally or directly participating in the solicitation of funds from anyone other than judges over whom the judge does not exercise supervisory or appellate authority.  Nothing in 4D(2)(c) diminishes the absolute bar against a judge’s personal or direct solicitation of funds contained in 4D(2)(a).

 

REFERENCES

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

Fla. Code of Jud. Conduct:  Canon 4D(2)(a), (b), and (c).

Fla. JEAC Op. 08-17.

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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 which governs any proceeding over which the inquiring judge may preside. 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 Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, 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)