FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-23
Date of Issue: December 15, 2017

ISSUES

1. May the administrative judge of a family law division send letters of appreciation to attorneys who have volunteered and served as a pro bono guardian ad litem?

ANSWER: Yes, as long as the letters are general in nature and are not signed by the judge who presided over the case for which the pro bono representation was provided.

2. May such a letter, if appropriate, be ethically sent only to the volunteer attorney without sending copies to counsel and without placing a copy in the court file?

ANSWER: Yes, but the Committee recommends that if a letter is sent, copies should be filed in the court file and provided to the parties or their counsel.

3. May, as an alternative to sending letters to the individual attorneys, the court participate in recognizing the attorneys who served as pro bono guardian ad litems as a group at a bar luncheon or similar function.

ANSWER: Yes.

FACTS

The inquiring judge states that the judge’s circuit maintains a list of local attorneys who have volunteered to serve pro bono in a limited number of family law cases where the interests of the children were best served by the appointment of a guardian ad litem (“GAL”). There is a different program in the circuit which provides GALs for certain types of other cases, but it reportedly does not have the resources to provide GAL representation for family law cases. According to the judge, a pro bono GAL will often devote between 20 and 40 hours to each family law case to conduct interviews, review pleadings and reports, attend hearings, and provide a report with the GAL’s own recommendations regarding child-related issues. The judges wish to recognize and express their appreciation for those attorneys who provided such pro bono GAL service in family court.

The inquiring judge and some other judges within the circuit contemplate sending a letter of appreciation to each lawyer who volunteered and served as a pro bono GAL in one of these family law cases. The proposed letter would thank the lawyer for serving, acknowledge their valuable assistance, and recognize the financial impact pro bono service represents. Some of the judges would prefer to send this letter of appreciation only to the GAL without copy to the court file, the parties, or their counsel. The inquiring judge proposes that the administrative judge of the family law division sign each letter. A proposed letter was attached to the judge’s inquiry.

The inquiring judge notes that some judges in the circuit have expressed concern that sending such a letter could impugn the court’s impartiality and may create the impression that the judges would be biased in favor of the volunteers’ factual reports and recommendations. The judge asks whether, if we found the letter to be inappropriate, the judges could recognize and thank those volunteer GALs at a bar association function, such as a luncheon.

 

DISCUSSION REGARDING ISSUE 1

Judges must abide by the restrictions of Canon 4A(1)-(6) of the Florida Code of Judicial Conduct when conducting all quasi-judicial activities. Canon 4B encourages judges to engage in quasi-judicial activities to improve the administration of justice. The proposed letter appears to be an effort by the judges to encourage attorneys to provide pro bono services. The comments to Canon 4B recognize that encouraging pro bono legal services is an appropriate activity that relates to the improvement of the administration of justice and state that a judge may engage in a variety of listed activities to encourage attorneys to provide pro bono representation. While the commentary’s list is not all inclusive, it does not mention sending a letter of appreciation to pro bono attorneys regarding specific case service. In Florida Judicial Ethics Advisory Committee Opinion 10-31, we approved a chief judge sending a letter to all attorneys in the relevant circuit, addressed to “Members of the Bar,” encouraging them to provide pro bono services by participating in the Florida Bar’s “One Campaign.” Because the letter in Opinion 10-31 was a general solicitation of all lawyers in the circuit, there was no reason to see it as impacting the court’s impartiality. Because the judges here would only send the letters to pro bono family law GALs, the judges should take appropriate steps to ensure that their independence and impartiality are not undermined. When a judge in New York proposed sending similar thank-you letters, the inquiring judge noted that letters of appreciation would be sent to lawyers who had already provided pro bono representation but the letters would not be signed by the judge presiding over the specific case. N.Y. ACJE Op. 09-68. The New York State Advisory Committee on Judicial Ethics approved the request, while instructing the judge to refrain from any discussion of any aspect of the case.

We conclude that a generic letter of appreciation may be sent to attorneys who have already provided pro bono GAL services as long as the case is concluded and the letter is not signed by any judge who presided over the case for which services were provided. The letter should be general in nature, must avoid any discussion of case-specific matters, and must not contain any comments which undermine the judge’s independence or impartiality. However, because of concerns discussed regarding Issue 2, sending a letter may not be the most appropriate way to recognize and thank the pro bono family law GALs.

 

DISCUSSION REGARDING ISSUE 2

The judge asks whether it would be permissible to send the letter of appreciation only to each pro bono GAL or whether copies must also be placed in the court file and sent to all counsel and/or parties. Apparently, certain judges in the circuit are concerned that if copies of the letter are sent to the parties and/or their counsel, some of them, after reading the letter, may question whether the court retained its independence and impartiality when considering the factual findings, report, and recommendations of the pro bono GAL in their case. Canon 3B(7) generally forbids a judge from initiating ex parte communications concerning a pending or impending proceeding; however, this Canon applies to adjudicative duties. If Canon 3 governs sending the letter, then the letter could not be sent ex parte. However, this Committee believes that sending a generic letter of appreciation is not an adjudicative act governed by Canon 3, but is instead a quasi-judicial act governed by Canon 4.

Canon 4(A)(1) and (2) require that the judge’s quasi-judicial activities be conducted so that they do not create doubt regarding or undermine the judge’s impartiality or independence. In our opinion, sending such a letter at the conclusion of the case is unlikely to call into question the impartiality or independence of either the presiding judge or the judge who signed the letter but was otherwise uninvolved in the case. However, as the letters will be sent in a directed fashion only to certain attorneys and only upon completed participation in a specific case, any party’s or attorney’s possible concern about judicial impartiality or independence may be amplified by curiosity if the letter is sent only to the GAL, rather than to all parties and counsel. Thus, if judges decide to send a letter of appreciation, we recommend that it be copied to the court file and all counsel and/or parties so that there will be no question about the contents of the letter.

 

DISCUSSION REGARDING ISSUE 3

The judge inquires whether it would be ethically permissible for one or more judges to participate in a bar association function, such as a luncheon, to recognize and thank the pro bono family law GALs as an alternative to sending a letter of appreciation. It is not only permissible, but that type of quasi-judicial activity is specifically encouraged in the comments to Canon 4(B). Public recognition may encourage repeat pro bono activity from those who previously served and may encourage first-time pro bono service from additional attorneys who have not yet done so. All judicial remarks regarding the pro bono family law GALs must comply with the above stated requirements of Canon 4 A(1) and (2) to avoid impacting the perception of judicial independence and impartiality. No judge should say anything that suggests the speaker or the other judges of the circuit favor those attorneys who provided such pro bono services and disfavor those who have not. Likewise, no judge’s remarks should contain anything reasonably perceived as an attempt to coerce, rather than encourage, the provision of pro bono GAL or other pro bono legal services.

While it is not this Committee’s role to advise on how best to express the judiciary’s appreciation and recognition of lawyers who provide pro bono GAL services in family law cases, public recognition at a bar function may be a better practice as it avoids the concerns associated with sending a letter of appreciation.

 

 

REFERENCES

Fla. Code Jud. Conduct, Canons 3, 3B(7), 4A(1) & (2), 4B, commentary to Canon 4B
Fla. JEAC Op. 10-31
N.Y. ACJE Op. 09-68

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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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Miguel de la O, Chair, Judicial Ethics Advisory Committee, Eleventh Circuit, Richard E. Gerstein Justice Building, 1351 N.W. 12th Street, Room 424, Miami, FL 33125.

Participating Members:
Judge Michael F. Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, and Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


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