FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2013-09
Date of Issue: April 1, 2013

ISSUES

May a judge educate friends, family and other members of the community about dependency court and the guardian ad litem program in an effort to secure additional volunteers for the program?

ANSWER: Yes, 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.

FACTS

The inquiring judge is assigned to the dependency court in the judge’s circuit.  The judge has become aware that there is a large disparity between the number of children in foster care and the number of volunteer guardians. 

The inquiring judge would like to know whether the Code of Judicial Conduct permits the judge to reach out to friends, family and other members of the community whom the judge encounters outside the courthouse, to educate them about dependency court and the guardian ad litem program, in an effort to secure additional volunteers for the program.  For example, the judge would like to know whether the Code permits a judge to give fellow members of the judge’s place of religious worship information about the guardian program and the volunteer process. 

Florida Rules of Juvenile Procedure 8.170 and 8.215(b) (2012) authorize judges to appoint guardians ad litem to represent children in dependency cases.  The judge notes that little to no funding exists, however, to compensate appointed guardians, and the guardian ad litem program relies upon volunteers from the community to keep the program running.  Accordingly, the inquiring judge asks whether the judge may provide information to friends, family and other members of the community about dependency court and the guardian ad litem program with the hope of obtaining additional volunteers. 

    
DISCUSSION

The rules of juvenile procedure permit the judge to appoint guardians ad litem in proceedings before them.  That power is a judicial duty.  The inquiring judge here, however, does not seek an opinion regarding the manner in which the judge intends to exercise the judicial power of appointment.  Rather, the inquiring judge seeks an opinion regarding the manner in which the judge intends to engage in a quasi-judicial activity, that is, educating friends, family and other community members about  dependency court and the guardian ad litem program with the hope of securing additional volunteers for the program.

The Committee believes this activity is a quasi-judicial activity under the Code.  See Fla. JEAC Op. 12-26 (the act of meeting with and soliciting attorneys to volunteer for appointment as pro bono attorneys ad litem for children in dependency cases is a quasi-judicial activity); 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 . . . .”).

The Commentary to Canon 4B suggests that the inquiring judge’s contemplated 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 criminal and juvenile justice, and 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, judicial conference or other organization dedicated to the improvement of the law.”); see also In re Amendments to the Code of Judicial Conduct – Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008); Fla. JEAC Op. 12-26 supra; Fla. JEAC Op. 08-21 (teaching an educational/trial skills course at a Dependency Court Improvement Summit sponsored by DCF analyzed as a quasi-judicial activity).

While Canon 4 permits and encourages judges to engage in quasi-judicial activities designed to improve the legal system and the administration of justice, it also contains admonitions regarding the manner in which a judge engages in 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.” Fla. Code Jud. Conduct Canon 4A (1) & (6).

Mindful of those admonitions, we opine that a judge may educate and provide information to friends, family and other members of the community regarding dependency court and the guardian ad litem program in order to secure additional volunteers for the program so long as 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 that may appear to a reasonable person to be coercive in this context.  Obviously though, the judge must be cautious that the tone or nature of delivery of the educational information or materials not appear to a reasonable person to be in any way coercive.

It is similarly difficult to define with specificity the type of conduct that may appear to cast reasonable doubt on the judge’s capacity to act impartially as a judge in this context.  As an example, however, prohibited conduct would exist if it appears to a reasonable person that the judge intends to give favorable treatment to juveniles who are represented by persons who volunteer as a result of the judge’s efforts.  Also, and perhaps to state the obvious, if a member of the judge’s family or certain friends volunteer to serve as a guardian ad litem, the judge would need to be mindful of the need for disclosure, recusal or disqualification under Canons 2 and 3 to the extent those individuals appeared in matters pending before the judge.  

 

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 Jud. Conduct Canons 2, 3, 4A(1) & (6), 4B, & Commentary to Canon 4B.

Fla. R. Juv. P. 8.170, 8.215(b) (2012).

Fla. JEAC Ops. 12-26, 08-21.

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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, Chair, Judicial Ethics Advisory Committee, 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 Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michelle Morley, 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