FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-21 (Election)1
Date of Issue: August 23, 2018

ISSUE

May a judicial candidate use or re-publish a news media report on the opponent's admittedly inappropriate relationship with a legal client, which occurred during the representation?

ANSWER: Generally, it would not be a per se violation of the Code of Judicial Conduct to use or re-publish negative or critical news reports or articles on the opponent, so long as the mandates of Canon 7 are followed.

 

FACTS

The inquirer is a judicial candidate. The news media has published reports that an opponent had, several years ago, been involved in an inappropriate and unprofessional relationship with one of the opponent's then-current legal clients.  The opponent has reportedly confirmed that the inappropriate relationship existed. The inquirer wishes to use or re-publish these reports during the campaign and asks if this is permissible.  

DISCUSSION

The Judicial Ethics Advisory Committee has previously dealt with the issue presented herein: may a candidate use or reproduce negative or critical reports on opponents in their advertisements or campaign communications.  We have consistently opined that we will not vet candidates' advertisements.  Among other reasons, we have ascribed to that position because we have no way of discerning or verifying whether the facts alleged are accurate.  Our opinions, therefore, have generally set out the guidelines which Canon 7 mandates must be followed, in order for the candidates' communications and ads to not violate the Code.  In Fla. JEAC Op. 98-27 we opined:

"It would not be a violation per se of the Code for a judicial candidate to reproduce negative articles about the candidate's opponents, but the candidate must follow the mandates of Canon 7. This Committee's Opinions in 94-16 and 94-35 are instructive. In Opinion 94-16, the Committee stated: 'The code does not directly address what is ethically acceptable when a candidate wishes to criticize a political opponent. Our Committee finds that in general it would be proper to criticize a political opponent when the criticism is truthful, pertinent and material to judicial office ...’”

In Fla. JEAC Op. 02-13 the Committee, after acknowledging 98-27 as precedent, further stated:

"a candidate may criticize an opponent if it is fair and truthful; is pertinent and material to the judicial office; is based on factual, not personal, grounds; is not about a pending case; and does not bring the candidate's impartiality or that of the judiciary into question...Canon 7A(3)(d)(iii) [now Canon 7A(3)(e)(ii)]…”

Therefore, the inquirer is cautioned to follow the mandates of Canon 7 in re-publishing and using the media reports.

 

REFERENCES

Fla. Code Jud. Conduct, Canon 7 and Canon 7A (3)(e)(ii)
Fla. JEAC Op. 94-16, 94-35, 98-27, 02-13

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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 James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Election Subcommittee Members:
Judge Roberto Arias, Judge Barbara Lagoa, Mark Herron, Esquire, and Judge Michael Raiden.  

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

 

 

1. The Judicial Ethics Advisory Committee has appointed an Election Practices Subcommittee. The purpose of this subcommittee is to give immediate responses to campaign questions in instances where the normal Committee procedure would not provide a response in time to be useful to the inquiring candidate or judge. Opinions designated with the “(Election)” notation are opinions of the Election Practices Subcommittee of the Judicial Ethics Advisory Committee, and have the same authority as an opinion of the whole Committee.