FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-26
Date of Issue: August 24, 2012

ISSUES

(1) May a judge request local bar associations to convene a special lunch meeting so that the judge may solicit attorneys to volunteer for appointment as pro bono attorneys ad litem for children in dependency cases?

ANSWER: Yes, if the judge’s conduct in requesting the meeting and soliciting the attorneys does not appear to a reasonable person to be coercive or cast reasonable doubt on the judge’s capacity to act impartially as a judge.  Such coercive conduct may exist if the judge’s conduct causes, or is likely to cause, an attorney to volunteer for appointment when:

(a) the attorney’s representation of a child is likely to result in violation of the Rules of Professional Conduct or of the law;
(b) the attorney’s representation of a child is likely to result in an unreasonable financial burden on the attorney; or
(c) the cause is so repugnant to the attorney as to be likely to impair the attorney-client relationship or the attorney’s ability to represent the child.

Such conduct may cast reasonable doubt on the judge’s capacity to act impartially as a judge if it appears to a reasonable person that the judge likely will favor attorneys who volunteer for appointment and/or disfavor attorneys who do not volunteer for appointment.

(2)   May a judge accept a non-profit organization’s offer to attempt to obtain the funds needed to pay for the meeting if the organization supports guardian ad litem volunteers and children for whom they advocate in the judge’s circuit but the judge is not involved in the fundraising effort?

ANSWER: No.

FACTS

The inquiring judge is assigned to the dependency division in the judge’s circuit.  The judge handles over half of the dependency cases in that circuit.  Currently, guardian ad litem volunteers represent children in dependency cases.  However, the number of children in dependency cases far exceeds the number of guardian ad litem volunteers.  Florida Rule of Juvenile Procedure 8.217(b) (2012) authorizes judges to appoint attorneys ad litem to represent children in dependency cases.  However, no funding exists to compensate appointed attorneys.  Therefore, the inquiring judge asks whether he/she may request local bar associations to convene a special lunch meeting so that the judge may solicit attorneys to volunteer for appointment as pro bono attorneys ad litem for children in dependency cases.

The inquiring judge states that, if permitted to request and conduct the meeting, he/she would need funds to rent a venue and serve lunch to draw the maximum number of attorneys to the meeting.  A non-profit organization, which supports guardian ad litem volunteers and children for whom they advocate in the inquiring judge’s circuit, has offered to attempt to obtain the needed funds.  The organization has identified private facilities which may be willing to donate the venue and lunch for the meeting.  The inquiring judge asks whether he/she may accept the organization’s offer to attempt to obtain the needed funds if he/she is not involved in that effort.

    

 

DISCUSSION

Issue 1

The appointment of attorneys to pro bono service is a judicial duty.  See In re Amendments to Rules Regulating the Florida Bar – 1-3.1(a) & Rules of Judicial Administration – 2.065 (Legal Aid), 573 So. 2d 800, 806 (Fla. 1990) (“We hold that every lawyer of this state who is a member of The Florida Bar has an obligation to represent the poor when called upon by the courts and that each lawyer has agreed to that commitment when admitted to practice law in this state.”) (emphasis added); R. Reg. Fla. Bar 4-6.2 (2012) (“[A] lawyer may be subject to appointment by a court to serve unpopular clients or persons unable to afford legal services.”).

Here, however, the inquiring judge does not seek an opinion regarding the manner in which he/she intends to exercise the judicial duty of appointment.  Rather, the inquiring judge seeks an opinion regarding the manner in which he/she intends to engage in a quasi-judicial activity, that is, requesting local bar associations to convene a special lunch meeting so that the judge may solicit attorneys to volunteer for appointment as pro bono attorneys ad litem for children in dependency cases.

We characterize this activity as a quasi-judicial activity and not as a judicial duty for three reasons.

First, no authority requires a judge to request local bar associations to convene a special lunch meeting so that the judge may solicit attorneys to volunteer for pro bono service; thus, it is not a judicial duty as discussed in Canon 3.  See Fla. Code Jud. Conduct Canon 3A (“The judge’s judicial duties include all the duties of the judge’s office prescribed by law.”).

Second, the act of requesting and conducting such a meeting causes a judge to “speak . . . lecture . . . and participate” in an activity “concerning the law, the legal system, [and] the administration of justice”; thus, it is a quasi-judicial activity as discussed in Canon 4B.  See Fla. Code Jud. Conduct Canon 4B (“A judge is encouraged to speak . . . lecture . . . and participate in other quasi-judicial activities concerning the law, the legal system, [and] the administration of justice . . . .”).

Third, Canon 4B’s Commentary suggests that this activity fits squarely within the scope of quasi-judicial activities discussed in Canon 4.  See Fla. Code Jud. Conduct Canon 4B Commentary (“As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including, but not limited to . . . the improvement of justice in the areas of . . . juvenile dependency . . . To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association . . . 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    . . . .”).  See also Fla. JEAC Op. 10-31 (Canon 4 permits a circuit’s chief judge to send a letter to “Members of the Bar,” soliciting lawyers’ participation in the “One Campaign” of The Florida Bar by donating pro bono legal services; such a letter “is precisely the type of judicial conduct the 2008 amendments to the Code were intended to permit”) (citing In re Amendments to the Code of Judicial Conduct – Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008)).

Turning to the merits, Canon 4 contains its own admonitions regarding the manner in which a judge conducts a quasi-judicial activity.  Canon 4A states, in pertinent part:  “A judge shall conduct all of the judge’s quasi-judicial activities so that they do not . . . cast reasonable doubt on the judge’s capacity to act impartially as a judge . . . [or] appear to a reasonable person to be coercive.” (emphasis added).  Fla. Code Jud. Conduct Canons 4A(1) & (6).

Applying the foregoing admonitions to the inquiry here, we opine that a judge may request local bar associations to convene a special lunch meeting so that the judge may solicit attorneys to volunteer for appointment as pro bono attorneys ad litem for children in dependency cases if the judge’s conduct does not appear to a reasonable person to be coercive or cast reasonable doubt on the judge’s capacity to act impartially as a judge.

It is difficult to define with specificity the type of conduct which may appear to a reasonable person to be coercive in this context.  However, we turn to Florida Rule Regulating the Florida Bar 4-6.2 (2012) for guidance.  Rule 4-6.2 states:

A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as when:
(a) representing the client is likely to result in violation of the Rules of Professional Conduct or of the law;
(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.

Applying Rule 4-6.2 to the inquiry here, we opine that a judge’s conduct in requesting local bar associations to convene a special lunch meeting so that the judge may solicit attorneys to volunteer for appointment as pro bono attorneys ad litem for children in dependency cases may appear to a reasonable person to be coercive if the judge’s conduct causes, or is likely to cause, an attorney to volunteer for appointment when:

(a) the attorney’s representation of a child is likely to result in violation of the Rules of Professional Conduct or of the law;
(b) the attorney’s representation of a child is likely to result in an unreasonable financial burden on the attorney; or
(c) the cause is so repugnant to the attorney as to be likely to impair the attorney-client relationship or the attorney’s ability to represent the child.

It is similarly difficult to define with specificity the type of conduct which may appear to cast reasonable doubt on the judge’s capacity to act impartially as a judge in this context.  However, it is common sense that such conduct would exist if it appears to a reasonable person that the judge likely will favor attorneys who volunteer for appointment and/or disfavor attorneys who do not volunteer for appointment.

Two members of the Committee believe that the focus of the inquiry must be upon the judge’s conduct in relation to the luncheon and are quite dubious the judge can act in a manner which will not appear to a reasonable attorney attending the luncheon as “coercive” and, thus, prohibited conduct. These members are concerned that the judge will impermissibly engage in “arm-twisting” or more subtle pressure tactics to inappropriately influence the attorneys in attendance to agree to “volunteer” for cases.  Nevertheless, these members agree that it is “possible” for the judge to conduct the luncheon in a non-coercive manner and, therefore, reluctantly agree with the majority.

To alleviate the possibility of the inquiring judge’s conduct in this context appearing to a reasonable person to be coercive or casting reasonable doubt on his/her capacity to act impartially as a judge, the Committee recommends that the inquiring judge consider requesting the local bar associations to allow him/her to conduct this solicitation at the associations’ regular lunch meetings instead of convening a special lunch meeting at his/her request.  Even in this context, however, the judge must be cautious that his/her tone or delivery does not appear to a reasonable person to be coercive or cast reasonable doubt on the judge’s capacity to act impartially as a judge as discussed above.

The possibility of the inquiring judge speaking at the local bar associations’ regular lunch meetings also would resolve the inquiring judge’s second inquiry, which we now address.

Issue 2

We opine that a judge may not accept a non-profit organization’s offer to attempt to obtain the funds needed to pay for the meeting, even if the judge is not involved in the fundraising effort, where the organization supports guardian ad litem volunteers and children for whom they advocate in the judge’s circuit.

If the organization did not support guardian ad litem volunteers and children for whom they advocate in the inquiring judge’s circuit, Canon 4D(2)(a) would have permitted the judge to accept the organization’s offer.  See Fla. Code Jud. Conduct Canon 4D(2)(a) (“A judge . . . may assist . . . an organization [devoted to the administration of justice] in planning fund-raising . . . but shall not personally or directly participate in the solicitation of funds.”).

However, because the organization supports guardian ad litem volunteers and children for whom they advocate in the inquiring judge’s circuit, several canons prohibit the judge from accepting the organization’s offer.  See Fla. Code of Jud. Conduct Canon 2B (“A judge shall not . . . convey or permit others to convey the impression that they are in a special position to influence the judge.”); Canon 2 Commentary (“A judge must avoid all impropriety and appearance of impropriety . . . The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with . . . impartiality . . . is impaired.”); Canon 3E(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”); Canons 4A(1) & (5) (“A judge shall conduct all of the judge’s quasi-judicial activities so that they do not . . . cast reasonable doubt on the judge’s capacity to act impartially as a judge . . . [or] lead to frequent disqualification of the judge  . . . .”); Canon 4D(2) Commentary (“[J]udges may not participate in . . . fund-raising activities on behalf of an organization engaging in advocacy if such participation would cast doubt on the judge’s capacity to act impartially as a judge.”).

 

REFERENCES

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

In re Amendments to Rules Regulating the Florida Bar – 1-3.1(a) & Rules of Judicial Administration – 2.065 (Legal Aid), 573 So. 2d 800 (Fla. 1990).

Fla. Code Jud. Conduct Canon 2B; Canon 2 Commentary; Canons 3A, 3E(1), 4A(1), (5) & (6), 4B, 4D(2)(a); Canon 4B Commentary; Canon 4D(2) Commentary.

Fla. R. Juv. P. 8.217(b) (2012).

R. Reg. Fla. Bar 4-6.2 (2012).

Fla. JEAC Op. 10-31.

 

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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 the Committee Chair: Judge Jonathan D. Gerber, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, 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 C. McFerrin Smith, III, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator