FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-06
Date of Issue: March 24, 2014

ISSUE

Whether a judge may appear in a video discussing a technological development pioneered by the judge’s circuit, which is intended to be shown by the provider of the technology at a large technology conference and  placed on the technology company’s website?

ANSWER: No.

FACTS

The inquiring judge’s circuit has developed and pioneered an innovative system using technology from a private company.  According to the judge, the technology company has been instrumental in providing certain components and technological assistance with the project, and the court has worked closely with the company to implement the system.  The technology company has now asked the inquiring judge to appear in a video discussing the system and explaining how well it has worked in the circuit and the cost savings involved.  The video is intended to be shown at a large technology conference and to be placed on the company’s website. 

The inquiring judge reports that a marketing company is working with the technology company to create the video, and that the marketing company has described the intent of the video as an inspirational story about collaboration, and how the outcome has improved the lives of the court staff and the community served. 

The inquiring judge acknowledges that the Code prohibits the endorsement of a particular product, but seeks guidance as to whether it would be appropriate to appear in a video that is being labelled by the technology company as a “white paper” presentation to explain how the technology has improved the functioning of the court. 

   

DISCUSSION

This inquiry is governed by Canon 2 of the Florida Code of Judicial Conduct, which requires that a judge avoid impropriety and the appearance of impropriety in all of the judge’s activities.  Specifically, Canon 2B provides that “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . ..”  The Committee concludes that Canon 2B prohibits the judge’s appearance in the video to discuss the benefits of the new technology.

The Committee answered a very similar inquiry in 1997.  In JEAC Op. 97-29, the inquiring judge had been asked to appear in a promotional video and demonstrate the use of video conferencing equipment which a private company intended to show to prospective buyers in other circuits.  The judge was extremely pleased with the performance of the equipment and believed it belonged in every courtroom.  The company was not asking the judge to endorse the company or its equipment.  Instead, the judge was requested to provide a statement on the effectiveness and versatility of the equipment, as well as its usefulness and capabilities in the courtroom.  In response to that inquiry, the Committee concluded that while not amounting to a direct endorsement, it was abundantly clear that the judge would be at least tacitly endorsing the product, and that such conduct is impermissible and contrary to the dictates of Canon 2B.

Several other Committee opinions are in accord.  See JEAC Ops. 06-14 (judge may not allow personal interview to appear in a documentary film to be used commercially in a marketing campaign for a reading instruction program); 00-15 (judge may not tape public service announcements to increase public awareness about local non-profit organizations and their projects); 93-34 (judge may not endorse a real estate development in an advertisement); 82-1 (judge may not permit name to appear on stationery or brochures promoting a dispute conciliation corporation); 76-8 (judge may not provide a taped interview on behalf of a local boys’ club to be shown on a telethon for fundraising).

The Committee acknowledges that the judge’s participation in the video, stating the benefits of the  technology as well as its cost savings, may result in more circuits using the technology, which may serve to improve the legal system and the administration of justice, and thereby advance the goals of Canon 4. Canon 4 encourages judges to engage in activities to improve the law, the legal system and the administration of justice.  Canon 4B specifically encourages judges to speak, write, lecture, teach and  participate in quasi-judicial activities concerning the law, the legal system, and the administration of justice.  The speech and conduct permitted and encouraged by Canon 4 are nevertheless expressly subject to, and limited by, the requirements and prohibitions of the Code of Judicial Conduct.  Indeed, the Commentary to Canon 4B reminds judges that the use of permissive language in various sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct.

Here, the Committee concludes that Canon 2B’s prohibition against lending the prestige of judicial office to advance the private interests of another, overrides the permissive language of Canon 4 and limits the judge’s ability to participate in the video.  That a marketing company is involved in the production of the video and that it is to be shown at a large technology conference and posted on the company’s website, are facts that strongly suggest that the  primary purpose of the video is to promote the technology to other potential purchasers.  The judge’s participation in the video extolling the virtues of the system as well as its costs savings, at a minimum would be an indirect endorsement of the product and whether an indirect or direct endorsement, undeniably would result in lending the prestige of the judicial office to advance the private commercial interests of the technology company. 

    

 

REFERENCES

Fla. Code Jud. Conduct, Canons 2, 2B, 4, 4B & Commentary to Canon 4B.

Fla. JEAC Ops. 06-14, 00-15, 97-29, 93-34, 82-1 and 76-8.     

_____________


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 to 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 Judge Roberto Arias, Chair, Judicial Ethics Advisory Committee, Duval County Courthouse, 501 West Adams Street, Room 7180, Jacksonville, Florida 32202-4603.

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, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michael Raiden, Judge Richard R. Townsend, Judge Dorothy L. Vaccaro.


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