FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-08 (amended)
Date of Issue: May 21, 2018

ISSUE

May the Judicial Assistants Association of Florida (JAAF), as a registered 501(c)(6) non-profit organization, request and/or accept donations from attorneys, private law firms, businesses, and local bar associations to help offset the costs associated with hosting its annual educational conferences as an organization?

ANSWER: Yes, JAAF as an organization may do so as long as precautions are taken that all activity is conducted in the name of the JAAF, independent of and without any reference in advertising, promotion or solicitation for funds to any particular JA’s judge or office.

 

FACTS

This is an inquiry from a Judge who asks: “The Judicial Assistants in our Circuit are very actively involved in the Judicial Assistants Association of Florida (JAAF), which hosts an annual education conference. I was . . . asked to what extent Judicial Assistants can solicit or accept donations from attorneys to help defray the costs of the conference.” The Inquiring Judge is aware that JAs, as individuals, are prohibited from soliciting attorneys directly, but asks if the JAAF as an organization can seek and/or accept donations from attorneys, private law firms, or businesses, where correspondences would be prepared on JAAF letterhead, executed by the JAAF President, and any donations collected paid directly to JAAF. Secondly, the Judge asks whether the JAAF may communicate directly with the local bar associations for purposes of promoting JAAF’s fundraising efforts to help offset costs associated with its annual educational conferences. JAAF indicated it would have all funds collected sent directly to JAAF, as opposed to through an individual JA.

The Judicial Assistants Association of Florida was formed in 1988 and is a registered 501(c)(6) non-profit organization. Its active members are judicial assistants presently employed in any court in the State of Florida. JAAF hosts one educational conference each year to provide continuing education for all Judicial Assistants, both members and non-members. Conferences are held throughout the State of Florida in designated circuits to allow ease of travel for participants. According to the Inquiring Judge, there are no funds allotted in the State’s general fund to assist JAAF with the costs of hosting the educational conferences. Registration fees from participants help offset some of the costs associated, but JAAF does not receive any other financial assistance from the State.

 

DISCUSSION

Courts could not run without the tremendous expertise, knowledge, and professionalism of JAs. The JAAF serves an important role in educating and mentoring JAs all over the State of Florida.

In Florida Judicial Ethics Advisory Committee Opinion 06-32, this Committee opined that JAs are not subject to the Code of Judicial Conduct. However, JAs are closely affiliated with individual judges. Canon 2B  provides a “judge shall not lend the prestige of judicial office to advance the private interests of the judge or others,” and also prohibits the Judge from allowing others like their JAs from conveying the impression that they are in a special position to influence the Judge.

In Florida Judicial Ethics Advisory Committee Opinion 95-12, the Committee indicated that fundraising by JAs is not precluded by the Code, but judicial assistants should be cautioned that all activities, such as fund-raising, should be conducted in a dignified and appropriate manner, outside of the courthouse and without any misuse of the prestige of the judicial office and not otherwise in violation of the judicial canons.

There was disagreement on this committee as to whether there is a possibility that those who donate are doing so to try to curry favor with the JAs and thereby gain favors in scheduling and access to the judge, for instance. Concerns expressed by a dissenting member in 95-12 are shared by several current Committee members:

What does concern me is who generally will donate to judicial assistants and who they will seek donations from, especially if the request is to defray costs of an education conference. Logically, the JA's are going to ask attorneys to give and that will more than likely occur at the Courthouse. Even if a JA waits and calls the attorney at night at home, the attorney will certainly feel coerced to contribute. The next most likely place to seek contributions is from local businesses. . . In other words, contributions most likely will be those involved with the judicial system.

The Committee suggested in Opinion 95-12 that JAs’ conduct should be governed by state ethics law. As of this opinion, no state ethics laws govern JAs. However, while there is no specific ethics law governing JAs, depending on the facts a JA, as a public employee, could be subject to section 112.313, Florida Statutes, including section 112.313(6). 

In Florida Judicial Ethics Advisory Committee Opinion 00-08, this Committee cited the Application Section of the Code of Judicial Conduct and again opined that the Code of Judicial Conduct applies only to judicial officers and quasi-judicial officers and does not apply directly to JAs. Although the Code did not directly preclude JAs from receiving gifts from attorneys, vendors, and third parties, it was the majority opinion of the Committee that a judge was ethically obligated to instruct court personnel to act in a manner consistent with the judge’s ethical duties and obligations, and suggested that the judge has an ethical obligation to direct the JA not to accept such gifts. This opinion was quoted with approval by the Florida Supreme Court in In Re: Luzzo, 756 So. 2d 76 (Fla. 2000).

The Committee relied upon Canon 3C(2) which states:

“A judge shall require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge...” 

Canon 3C(2), then, requires those subject to the judge’s discretion and control to observe the standards of fidelity and diligence that apply to a judge. While the Code of Judicial Conduct does not apply directly to JAs, bailiffs, or other court employees, a judge may be subject to discipline by failing to enforce and comply with its mandated directives. See Preamble to the Code of Judicial Conduct; Fla. JEAC Op. 00-08. In Florida Judicial Ethics Advisory Committee Opinion 18-5, this Committee again opined that Canon 4D(2)(a) and Canon 5C(3)(b)(i-iii), prohibit a judge from personally and/or directly participating in the solicitation of funds. A judge should therefore not permit a JA, who is subject to the judge’s direction and control, from engaging in the solicitation of attorneys, law firms, businesses, vendors, and third parties who come or are likely to come before that judge. Doing so would give an appearance of impropriety and have an adverse impact upon the public perception of the integrity of the court system.

A judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority. See Fla. Code Jud. Conduct, Canon 4D(2)(a). Unless there is a policy or Administrative Order barring this, members of the JAAF may request funds from other judges as long as their judge does not exercise supervisory or appellate authority.

Members of the JAAF may perform behind-the scenes work at a fundraiser such as cooking, serving food, and decorating. In Florida Judicial Ethics Advisory Committee Opinion 14-15, the Committee found that a judge may assist a nonprofit organization in planning a fundraiser and perform behind-the-scenes work as long as the judge’s name and position is not used in any of the fundraising activities, advertising or featured in the event. See Fla. JEAC Op. 01-09. It is generally permissible to perform subsidiary and unadvertised functions at fundraising events sponsored by educational, religious, charitable, fraternal, or civic organizations so long as they do not entail direct or personal solicitation. See Commentary to Canon 5C(3)(b). The JAs may similarly provide behind the scenes assistance in the planning of a fundraiser, so long as no judicial office is used to advance or advertise the organization’s fundraising goals. See Fla. JEAC Op. 03-16 (judge may not ethically participate in a voluntary bar association's fundraising event by providing goods or performing at event); Fla. JEAC Op. 14-07 (noting Canon 4D(2)(b)’s ban on “personally or directly participating in the solicitation of funds”); Fla. JEAC Op. 12-04 (prohibiting judge from directly soliciting donations from voluntary bar associations).

The analysis and advice given by this committee to judge’s family members appears equally applicable to judge’s JAs. In Florida Judicial Ethics Advisory Committee Opinion 18-02, this committee affirmed that a judges family member’s political activities are free of any restrictions, so long as they are conducted in the family member’s name, are entirely independent of the judge, there is no campaigning on behalf of the judge, and the judge is not referenced or used in any advertising. See also Fla. JEAC Op. 77-15. The family member and JA parallel was also raised in Florida Judicial Ethics Advisory Committee Opinion 95-12 by two members of the majority who felt that judges should be aware of the activities of their judicial assistants, as well as and for the same reasons as activity of family members, so that if these activities tend to reflect adversely on the judge's position, the judge will be able to counsel the judicial assistant.

In sum, the JAAF can seek and accept donations from attorneys, private law firms, local bar associations, or businesses as an organization, where such efforts are conducted on JAAF letterhead, executed by the JAAF President, with donations going directly to JAAF. If a judge’s JA is involved with the JAAF’s fundraising efforts, the judge should ensure that the JA’s involvement complies with the criteria set forth in Judicial Canons 2B; 3C(2); 4D(2)(a); and 5C(3)(B)(i).

 

REFERENCES

In Re: Luzzo, 756 So. 2d 76 (Fla. 2000)

Fla. Code Jud. Conduct, Canons 2B, 3C(2), 4A(1)-(6), 4(D)(2)(a)-(b), 5C(3)(b)(i-iii) and Commentary 5D(1)-(4), Preamble to the Code of Judicial Conduct.

Fla. JEAC Ops. 18-5; 18-02; 14-15; 14-07; 12-04; 09-15; 08-17; 06-32; 03-16, 01-09; 00-08; 95-12; 94-12; 77-15.

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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 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, Miami-Dade County Courthouse, 73 W. Flagler Street, Room 1407, Miami, FL 33130.

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, Judge David Green, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge Michael Raiden and Charles Reynolds, Esquire.


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, Supreme Court Clerk
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator