FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2013-11
Date of Issue: May 6, 2013

ISSUES

1. May a judge write a letter to a former client informing the client that the judge no longer can practice law?

ANSWER: Yes.

2. May a judge furnish a former client a copy of a document in the judge’s possession which the former client might find helpful in obtaining advice from new counsel?   

ANSWER: Yes.

FACTS

The inquiring judge received a letter from a former client who is now in the custody of the Department of Corrections, having entered a negotiated plea, been convicted, and sentenced to prison.  The inquiring judge reports that “[p]ursuant to the plea, the State dropped a sex offense charge so the defendant would not have to register as a sex offender, and presumably, he would be able to see his own children while in prison.”  The former client’s letter states that the prison is denying him access to all visitors under the age of eighteen.  The inquiring judge would like to respond by letter to the former client as follows:

Dear [former client]:

I have received your letter. Now that I have been elected Judge, the Code of Judicial Conduct prohibits me from advising you even though you are my former client.  

I have enclosed for you a copy of the Notice of Nolle Prosequi where the State dropped your sex offense, and a copy of a page from the Department of Corrections website.  These documents do not necessarily answer the question of why the Department is denying you access to your children, and I do not know why.

The law prevents me, as a judge, from intervening on your behalf in this case.  This means that I cannot call your classification officer or offer legal advice or services.

The inquiring judge asks whether it would be “ethically permissible for [the judge to enclose] . . . a copy of the Nolle Prosequi and Corrections’ Offender Search [web]page results.”

 

DISCUSSION

Preliminarily, we note that the Committee is in no position, as a practical matter, to pass on the propriety of a judge’s correspondence, one letter at a time, to former clients or others.  We recently said with regard to public service announcements:

As with requests to vet judges’ campaign literature, the committee declines to vet judges’ contemplated public statements.  See, e.g., Fla. JEAC Ops. 11-04 (PSA); 06-30 (presentation to community group); and 06-18 (responses to questionnaires). Accordingly, our advice to the inquiring judge will address only the propriety of the contemplated conduct.

Fla. JEAC Op. 13-10.  Similarly, we address the present inquiry and the proposed letter from the perspective of governing principles only and restrict our opinion to the propriety of the contemplated conduct.

The black-letter rule is that “[a] judge shall not practice law,” although “a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family.” Fla. Code Jud. Conduct, Canon 5G.  While not pertinent here, Canon 5E provides: “A judge shall not serve as . . .  attorney in fact . . . except for the estate, trust or person of a member of the judge’s family, and then only if the service will not interfere with the proper performance of judicial duties.”  In any event, we assume for present purposes that the former client is not a member of the inquiring judge’s family. 

In Fla. JEAC Op. 05-19, the Committee advised the inquiring judge there not to discuss a former client’s pending cases with the judge’s former law partner or with a new lawyer, unless the discussions would not constitute the practice of law.  We said that the

Canons and prior JEAC opinions all appear to give the newly selected judge substantial leeway in closing a law practice.  However, any discussion of pending cases with new counsel that would constitute the practice of law should take place during the process of closing the law practice, not after the judge takes office.  After taking office, all further efforts on a former client’s behalf should cease.

We also acknowledged that the Committee had “previously recognized the importance of newly selected judges (appointed or elected) having the ability to protect the interests of their clients, while at the same time preserving the ethical integrity of the new judge’s conduct. See JEAC Op. 2005-08.”  Id.

Plainly, sending a letter informing a former client that the judge no longer can practice law and that the client must look elsewhere for legal advice would not violate the Code of Judicial Conduct.  Furnishing a client copies of documents already in the file – or, indeed, the entire contents of the file –also is permissible.  On the other hand, generating new documents or discussing the legal significance of documents already in existence very well might be viewed as the practice of law, in violation of Canon 5.

A judge’s judicial responsibilities must, of course, always be the judge’s priority.  Using judicial stationery, moreover, or judicial personnel, in communicating with former clients, would not be appropriate, and would run afoul of Canon 5A, which provides:  “A judge shall conduct all of the judge’s extra-judicial activities so that they do not . . . demean the judicial office; [or] interfere with the proper performance of judicial duties.”  Fla. Code Jud. Conduct, Canon 5A(3)&(4).

    

 

REFERENCES

Fla. Code Jud. Conduct Canons 5A(3) & (4), 5E & 5G.
 
Fla. JEAC Ops. 13-10 & 05-19.

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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 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