FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2015-06
Date of Issue: April 16, 2015

ISSUE

May a judge give an educational presentation to the summer law clerks of the judge’s former law firm?

ANSWER: No.

FACTS

The Inquiring Judge been asked to speak to the Judge’s former law firm's summer law clerks on successful ways to practice in Florida's court system, including giving tips on how the law students should conduct themselves in court, how they should interact with judicial staff, and how they should prepare written materials that will be filed with the court. The Inquiring Judge would not receive payment or gifts from the law firm for the presentation. The Inquiring Judge states that the Judge would provide the same educational experience to summer law clerks of any other law firm that made a similar request.

 

DISCUSSION

In Florida Judicial Ethics Advisory Opinion 2003-03, the Committee opined that judges could not participate in a law firm's litigation program by presiding over mock trials at a law firm’s training retreat to be held at a local resort. The judges were invited to preside over a one-day mock trial and critique and give instruction to the firm's associates in an effort to improve their trial techniques. The law firm offered to pay for the room and meals of the judges who participated in the retreat. Unlike the judges in Florida Judicial Ethics Advisory Opinion 2003-03 who would receive room and meals at a resort for their participation in a law firm's educational program, the Inquiring Judge would not receive compensation directly or indirectly for making a presentation to the law firm's law clerks. However, the reasoning in Florida Judicial Ethics Advisory Opinion 2003-03 nevertheless applies.

Canon 4 of the Code of Judicial Conduct encourages judges to engage in activities to improve the law, the legal system, and the administration of justice. Canon 4B specifies that judges are encouraged “to speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch within our system of government.”

The Commentary to Canon 4B suggests that because judges are learned in the law, they are in a unique position to contribute to educational endeavors. Consequently, there are numerous Florida Judicial Ethics Advisory Committee opinions that have permitted judges to engage in law related teaching activities. See Fla. JEAC Ops. 75-28 (justice may teach at a law school); 81-3 (judge may teach business law at a university); 87-3 (judge may participate in a legal seminar sponsored by a private law firm in conjunction with the Academy of Florida Trial Lawyers and University of West Florida); 92-29 (judge may sponsor and organize seminars for attorneys); 08-21 (judge may teach an educational/trial skills course at a Dependency Court Improvement Summit sponsored by the Department of Children and Families); 10-27 (judge may present a seminar for attorneys on suggestions and anecdotes about how to present a case to a judge that would be posted on the judge’s circuit’s website). However, no Florida Judicial Ethics Advisory Committee opinion has approved of a judge giving a private educational presentation to one law firm.

Canon 2 of the Code of Judicial Conduct is titled “A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities.” Canon 2A requires a judge to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2B prohibits a judge from lending “the prestige of judicial office to advance the private interests of the judge or others” or permitting others “to convey the impression that they are in a special position to influence the judge.” Canon 4A(1) provides that 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.”

Giving practice “tips” at just one law firm violates the prohibitions set forth in these judicial canons. Certainly, other law firms and lawyers not associated with the firm where a judge is giving the presentation, as well as the public might legitimately believe that the judge has a special relationship with that particular law firm. Therefore, a reasonable person may question the judge’s impartiality as it relates to that law firm.

In addition, the presentation requested will be to the judge’s former law firm. A judge should take steps to avoid conduct that requires disqualification in matters that would come before the judge. It is customary for a judge to wait one or two years after becoming a judge before presiding over the judge’s former law firm’s cases. This customary wait period assumes that the judge has no financial ties to the law firm at the end of the wait period and the matter before the judge is not a case that the judge’s former law firm undertook representation while the judge was a member of the firm. See Fla. Code Jud. Conduct, Canon 3E(1)(b); Fla. JEAC Ops. 93-19 and 04-06. Giving an educational presentation to the summer law clerks of the judge’s former law firm gives the appearance that the Inquiring Judge is maintaining close ties with that firm, which in turn may result in motions to disqualify the judge.

The Inquiring Judge has indicated that the Judge would make the same educational opportunities open to any law firm that requested such a presentation. This is a laudable but unrealistic position. Canon 3A states that “[t]he judicial duties of a judge take precedence over all the judge’s other activities.” Canon 3B(8) states that a “judge shall dispose of all judicial matters promptly, efficiently, and fairly.” The Commentary to Canon 3B(8) states that the “[p]rompt disposition of the court’s business requires a judge to devote adequate time to judicial duties” and to be “expeditious in determining matters under submission. . . .”

Canon 4A(4) requires a judge to “conduct all of the judge’s quasi-judicial activities so that they do not...interfere with the proper performance of judicial duties.” Once the Inquiring Judge makes a presentation to one law firm’s summer clerks, then the Judge has burdened the Judge’s schedule with the commitment to make similar presentations to an untold number of other law firms. This obligation certainly could affect the judge’s ability to comply with Canons 3A, 3B(8) and 4A(4).

For the reasons set forth herein, the Committee, with one dissent, opines that the Inquiring Judge should not make a private educational presentation to the Judge’s former law firm or to any other one law firm.

 

REFERENCES

Fla. Code of Judicial Conduct, Canons: 2, 2A, 2B, 3A, 3B(8), 3E(1)(b), 4, 4A(1), 4A(4), 4B, Commentary to Canon 4(B); Commentary to 3B(8).

Fla. JEAC Ops. 75-28, 81-3, 87-3, 92-29, 93-19, 03-03, 04-06, 08-21, 10-27.

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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