FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2012-29
Date of Issue: September 28, 2012
1. May a judge participate in a charity walkathon wearing a shirt with a “team name” based on the name of a local attorney in private practice?
2. May a judge’s spouse donate and solicit funds on the spouse’s behalf and on behalf of the team named for the local lawyer?
ANSWER: Yes, as long as the judge is not seeking to solicit funds vicariously through the efforts of the judge’s spouse.
The inquiring judge and the inquiring judge’s spouse are volunteering to walk in a walkathon on behalf of a national charity. They are contemplating being designated members of “Team Smith” [not the real last name of a local attorney in private practice]. They also are considering wearing shirts bearing the legend “Team Smith” during the walkathon.
The inquiring judge is assigned to the criminal bench. According to the inquiring judge, the local attorney practices in the area of bankruptcy and does not practice criminal law. The inquiring judge reports that the local attorney “has never appeared before me, nor is it reasonably believed that [the local attorney] will appear before me in the future.” The inquiring judge’s spouse does not work for the local attorney.
The inquiring judge plans to donate money in the judge’s name to the national charity, but will not solicit funds on the judge’s behalf or on the team’s behalf. The inquiring judge’s spouse plans to solicit funds on the judge’s spouse’s behalf and on the team’s behalf. All donations will go to the national charity.
Canon 2B provides generally that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” Specifically with reference to charitable organizations not related to the law, the legal system, or the administration of justice, Canon 5C(3)(b) provides that, while a judge may assist charitable organizations in planning fund-raising events, a judge “(i) . . . 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; (ii) shall not personally or directly participate in membership solicitation if the solicitation might reasonably be perceived as coercive; [and] (iii) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.”
In connection with walkathons designed to raise funds for charitable purposes, a majority of this Committee recently concluded “that a judge may participate as a walker in a walk-a-thon fund-raiser to benefit a charitable organization and make a personal contribution to support the cause, so long as the judge does not solicit sponsorships. To hold otherwise would tend to isolate the judge ‘from the community in which the judge lives,’ a consequence to be avoided, according to the Commentary to Canon 5A.” Fla. JEAC Op. 10-15. The majority concluded that “it cannot be said that the judge might be impermissibly lending the prestige of the office to the organization by merely walking in the event where someone might recognize the judge.” Id.
Further, “[m]ere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of Canon 5C(3)(b). It is also generally permissible for a judge to pass a collection plate at a place of worship or for a judge to serve as an usher or food server or preparer, or to perform similar subsidiary and unadvertised functions at fund-raising events sponsored by educational, religious, charitable, fraternal, or civic organizations, so long as they do not entail direct or personal solicitation.” In re Amendments to the Code of Judicial Conduct, 983 So. 2d 550, 560 (Fla. 2008).
But we see a distinction between supporting an educational, religious, charitable, fraternal, or civic organization, on the one hand, and advertising or promoting a private law office while doing so, on the other. Wearing a shirt emblazoned with a law office’s name on it would run afoul of Canon 2B’s prohibition against a judge’s lending the prestige of judicial office to advance the private interests of others. Thus, the Committee opines that the inquiring judge may not wear the shirt of the team named for the local lawyer in the walkathon, because doing so would lend the prestige of judicial office to the local lawyer.
A judge’s spouse, without question, may participate as a walker in a walkathon designed to raise funds for a charitable organization and make a personal contribution to support the cause, just as the judge can. As for the restrictions imposed upon judges, the rule is that “a judge must also make reasonable efforts to ensure that the judge’s staff, court officials and others subject to the judge’s direction and control do not solicit funds on the judge’s behalf for any purpose, charitable or otherwise.” Commentary to Canon 5C(3)(b). In the modern era, few would be so bold as to suggest that, as a general proposition, a judge’s spouse is under the judge’s direction and control. Considerations of personal autonomy figure in importantly. On the other hand, it is very clear that the judge would be acting in violation of the canons if the judge sought to solicit funds for the charity through the vicarious efforts of the judge’s spouse. Thus, the Committee opines that the inquiring judge’s spouse may donate and solicit funds on the spouse’s behalf and on behalf of the team named for the local lawyer, but may not, at the behest of or on behalf of the judge, solicit funds ostensibly on the spouse’s own behalf, on behalf of the team named for the local lawyer, or otherwise.
Four members of the Committee believe that the inquiring judge also is under an ethical obligation to discourage the judge’s spouse from wearing the shirt or soliciting funds on behalf of the team named for the local lawyer in the walkathon.
In re Amendments to the Code of Judicial Conduct, 983 So. 2d 550, 560 (Fla. 2008).
Fla. Code Jud. Conduct Canons 2B and 5C(3)(b); Commentary to Canon 5C(3)(b).
Fla. JEAC Op. 10-15.
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 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.
Judge Roberto Arias, Judge Robert T. Benton II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge Michelle Morley, Judge Barbara Lagoa, Judge Richard R. Townsend, 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