FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-26
Date of Issue: November 26, 2014

ISSUE

May a judge donate money to a legal aid organization whose attorneys appear before the judge?

ANSWER: Yes, unless the judge concludes that the circumstances of the donation would cause a reasonable perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.

FACTS

In JEAC Op. 10-17, this Committee opined that a judicial officer (a traffic hearing officer "THO") could donate money to a legal aid organization whose attorneys did not appear before that judicial officer. However, the Committee commented that such a donation “may convey the appearance of impropriety by the THO with the attorneys in that organization, if the Legal Aid Society represents people in proceedings before the THO or in civil or criminal traffic court in any county in which the THO presides.”

We reasoned that if the organization’s attorneys engaged in litigation before the judicial officer then the judicial officer’s donation of money to the legal aid organization would violate Code of Judicial Conduct Canon 2A by conveying the appearance of the judicial officer’s partiality for the attorneys in that organization. See Canon 2A (“A judge . . . shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”); Canon 2A 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 integrity, impartiality, and competence is impaired.”)

The Inquiring Judge requests clarification of JEAC Op. 10-17 because the attorneys employed by the legal aid organization, do appear before the Inquiring Judge who contemplates making the donation.

 

DISCUSSION

A majority of eight members of the Committee conclude that, as a general proposition, a contribution by a judge to a legal aid organization would not cause a reasonable perception that the judge’s integrity, impartiality, or competence is impaired, as it relates to a matter before the judge wherein a party was being represented by an attorney employed by the legal aid organization.

This Committee finds support for its answer in the Code of Judicial Conduct Canon 4B and its Commentary, which respectively provide, in pertinent part, that “[a] judge is encouraged to . . . participate in . . . quasi-judicial activities concerning . . . the administration of justice,” and that “[s]upport of pro bono legal services by members of the bench is an activity that relates to the administration of justice.”

This Committee considers “[s]upport of pro bono legal services” to include the ability to donate money directly or indirectly (perhaps through the United Way or a similar community-based charity) to a legal aid organization.

The Committee includes within its definition of legal aid organizations, for the purposes of this opinion, those utilizing the services of volunteer lawyers as well as those who hire lawyers to provide services. Further, the Committee includes those organizations operated by local bar associations, legal services corporations, and law schools, or any other non-profit organization, so long as the purpose of the organization is to provide legal services to clients who could not otherwise afford these services.

The Committee believes that Canon 4B and its Commentary, which more specifically encourage judges to support pro bono legal services, can be reconciled with Canons 2A, 4A(1), and 4A(2), which more generally encourage judges to conduct themselves in a manner which promotes integrity and impartiality. In the Committee’s view, as a general proposition, a judge’s donation of money to a legal aid organization would not create, in reasonable minds, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired where an attorney from the legal aid organization, or a party assisted by the legal aid organization, appears before the judge. See Canon 2A Commentary.

In sum, the Committee believes that, as a general proposition, a judge’s contribution to a legal aid organization sends one message: the judge supports the concepts that all persons are entitled to legal services regardless of their ability to pay, and that support of legal services to the indigent is a “core value” of the legal profession.

However, the Committee acknowledges that certain circumstances, not before it in this inquiry, relating to the specifics of a donation to a legal aid organization, might lead to a different result.

Legal aid organizations, with their common purpose of providing legal representation for those persons who cannot afford to hire a lawyer, may nevertheless elect to focus on different client needs. As only one example, a legal aid organization might choose to focus, to a large extent, on representing clients in disputes with landlords. If a judge contemplating a contribution to this organization was a county court judge, whose docket was filled with landlord-tenant disputes which would result in the attorneys from the legal aid organization repeatedly appearing before the judge, the judge might conclude that, based on the specific circumstances, a litigant might reasonably believe that the judge's impartiality was impaired as a result of the contribution.

In summary, the Committee believes that, as a general proposition, a contribution to a legal aid organization by a judge is permissible even if the organization’s lawyers appear before the judge, but that the judge should be aware of specific circumstances surrounding the contribution which might cause a reasonable person to conclude that the judge’s impartiality is impaired.

To the extent JEAC Op. 10-17 conflicts with this opinion by stating generally that a judicial officer may donate money to a legal aid organization unless the organization engages in litigation before the judicial officer, we recede from JEAC Op. 10-17.

Four Committee members dissent and opine that this Committee should not recede from JEAC Op. 10-17.

The minority believe that a judge’s donation to a legal aid organization whose attorneys appear before the judge would violate Canon 2A by creating in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired in favor of the party being represented by the lawyer employed by the legal aid organization.

The minority finds support in Canon 4D(2) Commentary (a judge may solicit persons for memberships in an organization devoted to the improvement of the law, the legal system, and the administration of justice “if neither those persons nor persons with whom they are affiliated are likely ever to appear before the court on which the judge serves”); and JEAC Op. 10-31 (a chief judge may send a letter to “Members of the Bar” soliciting lawyers’ participation in a Florida Bar campaign to donate pro bono legal services or donate money to a legal aid organization as an alternative to service, because such a letter is a general solicitation, not a direct or individual solicitation to lawyers who may appear before the court on which the judge serves).

One member of the minority also relies upon Canon 4B’s Commentary which provides, in pertinent part:

This canon was clarified in order to encourage judges to engage in activities to improve the law, the legal system, and the administration of justice . . . . 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 bonoservices, including, but not limited to: participating in events to recognize attorneys who do pro bono work, establishing general procedural or scheduling accommodations for pro bono attorneys as feasible, and acting in an advisory capacity to pro bono programs.

(emphasis added).

According to this member, the Commentary to Canon 4B should not be read expansively to authorize financial contributions by judges to legal aid organizations, even when attorneys from the organization represent clients before the contributor judge, as the majority concludes. Canon 4B's language merely suggests judges may "encourage" attorneys to perform or "recognize" attorneys who perform pro bono services, generally accommodate pro bono attorneys, and act in "an advisory capacity" to pro bono programs. Canon 4B just as easily could have clarified that it is permissible for judges to support, participate in, and donate to "legal aid organizations," as well as pro bono work by attorneys. This Committee member observes that pro bono work is uncompensated work performed for the public good. Entities that hire attorneys expressly for the purpose of providing counsel to impoverished or indigent clients are not pro bono. If they are, then the Office of the Public Defender is a pro bono entity. In fact, this minority member asserts that the majority's definition of "legal aid organizations" is broad enough to include the Office of the Public Defender and finds it inconceivable that a judge could contribute money to that office and preside over cases involving public defender cases. Thus, this Committee member’s position is that judicial officers cannot support or contribute to legal aid organizations except as approved in JEAC Op. 10-17.

The majority observes that "a judge’s contribution to a legal aid organization sends one message: the judge supports the concepts that all persons are entitled to legal services regardless of their ability to pay, and that support of legal services to the indigent is a 'core value' of the legal profession." This minority member believes judicial contributions to legal aid organizations whose attorneys will appear before that judge contravenes another, more essential "core value" of the judiciary, namely that the judges must be impartial and avoid impropriety and the appearance of impropriety. This "core value" trumps any generalized professional interest in supporting indigent legal services. Judges may not favor anyone based upon that person's status or wealth, or lack of either.

 

REFERENCES

Fla. Code Jud. Conduct Canon 2A & Commentary; Canon 4A(1) & (2); Canon 4B & Commentary; Canon 4D(2) Commentary.

Fla. JEAC Ops. 10-17, 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 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.    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 Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

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 whether the proposed conduct violates a provision of that Code.

For further information, contact Dean Bunch, Chair, Judicial Ethics Advisory Committee, 3600 Maclay Boulevard South, Suite202, Tallahassee, Florida 32312.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, 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 Michael Raiden, and Judge Richard R. Townsend.


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