FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2015-05
Date of Issue: March 13, 2015

ISSUE ONE

May a judge, as a member of the Board of Directors of a District Court of Appeal Historical Society, encourage others to participate in a walk/run fundraiser that is sponsored by a bar association when the funds will support the bar association’s pro bono project?

ANSWER: No, unless the solicitation is limited to judges over whom the judge exercises no supervisory or appellate authority.

ISSUE TWO

May a judge participate in a walk/run fundraiser as a team captain and coordinate logistics for the team, such as snacks and T-shirts, when the project supports the bar association’s pro bono projects?

ANSWER: Yes.

 

FACTS

The inquiring judge is on the board of directors of a district court of appeal historical society. The judge has been asked by the society to serve as team captain of a team to participate in a bar association’s run/walk. As team captain, the judge would encourage others to participate, coordinate the team members, and help coordinate the logistics of the event. The judge would not be involved in collecting money from the participants since they would register directly on the bar association’s website. The money raised by the bar association will be used to support the bar association’s pro bono project.

 

DISCUSSION

The issues involved in this inquiry are distinguishable from the issues involved in Fla. JEAC Op. 2010-31. In Fla. JEAC Op. 2010-31, the inquiring judge was advised that it was proper to send a general solicitation to members of the Bar soliciting lawyers’ participation in pro bono services. This Committee acknowledged that Canon 4D(2), Florida Code of Judicial Conduct, would have precluded personal or direct solicitation of lawyers for such participation. The Committee relied upon Canon 4D in its rationale for the opinion.

Canon 4D and its Commentary encourage judges to engage in activities intended to encourage attorneys to perform pro bono services. However, personal and direct solicitation of funds is precluded, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority. Furthermore, personal and direct membership solicitation is precluded if the solicitation is reasonably perceived to be coercive. The Commentary to Canon 4D explains the difference in the personal solicitation of funds and personal solicitation of membership:

A judge must not engage in direct, individual solicitation of funds or memberships in person, in writing or by telephone except in the following cases: 1) a judge may solicit for funds or memberships other judges over whom the judge does not exercise supervisory or appellate authority, 2) a judge may solicit other persons for membership in the organizations described above 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 3) a judge who is an officer of such an organization may send a general membership solicitation mailing over the judge’s signature.

The rationale of Fla. JEAC Op. 2010-31 applies to the present inquiry since the inquiring judge states that part of the judge’s responsibility as team captain would be to encourage others to participate and therefore contribute funds to this law related project for a law related organization. This suggests a personal and direct solicitation of funds, which would be precluded unless the personal solicitation was directed solely to judges over whom the judge does not exercise supervisory or appellate authority. Although the inquiring judge states that this is a team membership recruitment, the judge is in reality directly soliciting funds for the pro bono project as opposed to soliciting membership in the pro bono organization. Thus, unless the inquiring judge is limiting the search for team members to judges over whom the judge exercises no supervisory or appellate authority, the judge encouraging others to participate in the run/walk is precluded by Canon 4D.

A similar inquiry was addressed in Fla. JEAC Op. 2010-15. In that opinion the Committee opined that a judge could participate in a walk-a-thon fundraiser to benefit a charitable organization so long as the judge did not solicit sponsorships. The judge was not a team captain and the judge acknowledged that soliciting funds for a non-legal organization was inappropriate and prohibited by the Code. The present inquiry differs in that the current inquiry involves a law related organization, a law related event, and a law related purpose. This distinction became relevant pursuant to the 2008 Amendment to the Code, which expanded the extent of participation of a judge in fundraising events, particularly when the event involved a law related organization, a law related event, and a law related purpose. In Re Amendments to the Code of Judicial Conduct, 983 So. 2d 550 (Fla. 2008). The Amendment did not change the prohibition on direct and personal solicitation of funds that would result from being a team captain and soliciting participation.

Notwithstanding the Code’s prohibition on direct solicitation of funds, the Code encourages other participation in activities involving the law, the legal system, and the administration of justice, when the funds are used for a law related purpose. Therefore, pursuant to Canon 4D, the inquiring judge may be involved in planning the event, may be featured in the program as a team captain, and may permit the judge’s title to be used in conjunction with the event. Furthermore, the Code permits active participation in the event, such as participating in the walk/run itself and providing logistical support, such as arranging for T-shirts and providing concessions.

Therefore, because this is a function being sponsored by a law related organization, the fundraiser concerns the law, the legal system, or the administration of justice, and the funds are used for a law related purpose, the inquiring judge may participate as a team member and team captain and may otherwise actively participate in the event, but may not personally or directly solicit others to participate unless such persons are other judges over whom the judge exercises no supervisory or appellate authority.

 

REFERENCES

In Re Amendments to the Code of Judicial Conduct, 983 So. 2d 550 (Fla. 2008)

Fla. Code of Judicial Conduct, Canon 4

Fla. JEAC Ops. 2010-31, 2010-15

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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, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Spencer Levine, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michael Raiden, 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