FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-02
Date of Issue: January 14, 2019

ISSUES

1. May a sitting judge film a pilot for a law-related television show?

ANSWER: Yes, as long as doing so does not cast reasonable doubt on the judge’s capacity to act impartially, demean the judicial office, or interfere with the proper performance of judicial duties.

2. May a sitting judge participate in the taping of a television pilot if the same is being filmed in another state, and accept compensation and travel reimbursement?

ANSWER: Yes, keeping in mind annual ethics disclosure requirements of compensation and/or gifts received by sitting judges.

3. May a sitting judge participate as the television judge and remain on the bench if an offer is extended by the producers of the television show?

ANSWER: No.

FACTS

The inquiring judge has been invited to audition for a television pilot. The proposed television show will feature a judge who presides over pro se civil cases. The litigants agree to have their small claims cases resolved by the television show’s presiding judge. The pilot and series will be taped and produced outside of Florida. The pilot will only be viewed by television executives and not made public. Auditioning for the one pilot would not contractually bind the inquiring judge. An offer of compensation and reimbursement for travel expenses for filming the pilot was extended. If, after reviewing the pilot, the television executives extend an offer to the inquiring judge, this would open the door for further negotiations, including compensation arrangements with the producer of the show. The inquiring judge asks whether he/she can audition for the pilot, accept payment and travel reimbursement; and if offered the television judge role, whether he/she may also remain on the judicial bench.

 

DISCUSSION

The canons applicable to this inquiry are as follows:

Fla. Code Jud. Conduct, Canon 1 requires a judge to maintain high standards of conduct so that the integrity of the judiciary is preserved.

Fla. Code Jud. Conduct, Canon 2A states that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The inquiring judge must take care not to undermine the priority of the judge’s work and docket. Doing so could erode public confidence in the integrity and impartiality of the judiciary. A judge must be committed to the impartial and efficient discharge of his or her duties.

Fla. Code Jud. Conduct, Canon 2B states: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”

This Committee has dealt with numerous inquiries in which contemplated conduct involved the judge’s appearances, speech, or lectures. Some opinions have concluded that the Code prohibited the judge’s proposed conduct when the conduct could be interpreted as constituting endorsements of business products and services, thereby lending the prestige of the office to advance the private interests of others. See Fla. JEAC Op. 07-21. Other opinions have concluded that judges may speak at events sponsored by private organizations as long as the judge’s participation is educational in nature. See Fla. JEAC Op. 07-09. Judges are encouraged to participate in activities that are, by design, educational for members of the public. See Fla. JEAC Ops: 18-1, 08-21, 12-07, 77-14.

However, the question of whether a judge may appear as a commentator on a commercial television station with pay was addressed in Fla. JEAC Op. 96-25. The analysis for the present inquiry related to a television show would be no different. In 96-25, this Committee examined ethics opinions from around the United States. We concluded that a judge's appearance as a regular commentator on the commercial airwaves would violate the Code of Judicial Conduct if the subject matter covered by the judge focuses upon current legal matters and current cases pending before various courts. This Committee concluded that the proposed arrangement with the television station would also lend judicial prestige to the commercial interests of the television station in violation of Canon 2B; the activity would involve improper public comment upon a pending or impending proceeding in violation of Canon 3B; and the activity would cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, and interfere with the proper performance of judicial duties in violation of Canon 5. The Committee concluded that for these reasons, the commercial and entertainment aspects of regular judicial appearance on a television show might outweigh the legitimate public information aspects.

For similar reasons, inFla. JEAC Op. 00-16, we concluded that a judge's appearance as a regular commentator on the commercial airwaves would violate the Code of Judicial Conduct if the subject matter covered by the judge focused upon current legal matters and current cases pending before various courts. In reaching this conclusion, we relied upon Fla. JEAC Op. 96-25 and an earlier opinion, Fla. JEAC Op. 91-5, concerned whether a judge may produce and broadcast a weekly radio talk show on divorce and family law. Although in that case, a divided Committee was unable to reach a majority position, the opinion noted the virtual impossibility of avoiding the hazards of giving legal advice or commenting upon pending cases under the situation described.

In Fla. JEAC Op. 81-12, a JEAC member cautioned:

". . . It might be well to remind him that the forum of television with the penchant of the media to report conflict and controversy rather than support legitimate and much needed reforms, would dictate that his television exposure should be structured as carefully as possible."

Accordingly, regular television appearances on a commercial television show as contemplated in this inquiry would violate Canons 1, 2A and B. A sitting judge also employed as a television judge would require the inquiring judge to offer commentary that could inject personal opinion or foreshadow how they might rule on their pending judicial cases. This in turn would cast reasonable doubt on the judge’s ability to act impartially, thereby eroding public confidence in the integrity and impartiality of the judiciary.

Fla. Code Jud. Conduct, Canon 3B(1) providesthat a judge “shall hear and decide matters assigned to the judge except those in which disqualification is required.”

Fla. Code Jud. Conduct, Canon 3B(8) requires a judge to “dispose of all judicial matters promptly, efficiently and fairly.” The commentary to Canon 3B(8) is instructive, explaining that, “[p]rompt disposition of the court’s business requires a judge to devote adequate time to judicial duties. . .” These two sections taken together impose a duty on a judge to be readily available to promptly dispose of all the court’s business without relying on other judges to handle the cases that are routinely filed in the court. Further, emergency and urgent matters may be presented to the court during any or all of the days the court is open for business each week and the assigned judge must be available to address them within a reasonable time, except for ordinary vacation and sick time. The inquiring judge would no doubt be unable to devote adequate time to their judicial duties if also preparing to air regular episodes of a television show requiring travel outside of Florida.

Fla. Code Jud. Conduct, Canon 3B(9) states, in pertinent part: “A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.” Canon 3B(9) expressly applies to public and nonpublic comments made by a judge that might interfere with the outcome or the fairness of a proceeding, and expressly encompasses public statements made by a judge outside of a judicial proceeding.

This canon would be implicated by the present inquiry. Being a television judge and a sitting judge may reasonably be expected to impair the fairness of the tribunal.

Fla. Code Jud. Conduct, Canon 4A states, in pertinent part: “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 . . . demean the judicial office . . . [or] lead to frequent disqualification of the judge.”

In Fla. JEAC Op. 11-18, the inquiring judge proposed to contract for pay with a national television production company to tape the judge’s arraignments and offer a subsequent teaching segment. The judge would explain the law, sentencing choices, and interview different “players” in the court system. The Committee advised that because the judge would be discussing the law and sentencing choices, this could lead to frequent disqualification of the judge and could cast reasonable doubt on the judge’s capacity to act impartially in judicial cases.

Fla. Code Jud. Conduct, Cannon 5A provides the same cautions for the conduct of extrajudicial activities as in Canon 4A. Fla. Code Jud. Conduct, Cannon 5A provides: A judge shall conduct all of the judge’s extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.

All three parts of Canon 5A are implicated by this inquiry. Here, if the inquiring judge is offered a position requiring regular appearances on a television show located outside of Florida, this extrajudicial activity would no doubt interfere with the proper performance of judicial duties. A dual employment arrangement would also create the public perception that the inquiring judge has conflicting priorities other than the proper performance of judicial duties.

Fla. Code Jud. Conduct, Canon 5D(1)(b) does not appear to be implicated where the inquiring judge seeks to audition for a pilot for a court television show involving families in contract disputes. Although members of the television media are frequent litigants in the courts, the producer of the show in this inquiry is located outside of Florida, therefore unlikely to come into conflict with the portion of the Code requiring judges to avoid engaging in continuing business relationships with persons likely to come before the court.

Fla. Code Jud. Conduct, Canon 5D(3) addresses the ethical obligations and requirements relating to a judge's financial activities. The Canon provides that: “A judge shall not serve as an officer, director, manager, general partner, advisor or employee of any business entity except that a judge may, subject to the requirements of this Code, manage and participate in: (a) a business closely held by the judge or members of the judge's family, or (b) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge’s family.

Fla. Code Jud. Conduct, Canon 5D(3) is one of the few per se proscriptions on lawful off-the-bench activities to be found in the Code. The Canon states a flat prohibition against judges acting as officers, directors, managers, advisors, or employees. See Fla. JEAC Op. 97-35 (inquiring judge may not serve as an officer, director, manager, general partner, advisor or employee of a corporation.)

Under Fla. Code Jud. Conduct, Canon 6A, a judge may receive compensation or reimbursement of expenses for the quasi-judicial and extrajudicial activities permitted by the Code, if the sources of these payments do not give the appearance of influencing the judge in the performance of judicial duties or otherwise give the appearance of impropriety.

If the inquiring judge receives a one-time payment and travel reimbursement for the pilot, the proposed conduct does not appear to implicate Canon 5D(3) or Canon 6A. However, if the judge accepts an offer to be the television judge, thereby creating an employee/employer relationship with the show’s producer while still remaining on the bench, the referenced canons would be violated.

Article V, section 13 of the Florida Constitution mandates that all judges devote full-time to their judicial duties. See Fla. JEAC 96-25. A real risk the inquiring judge may face is the perception of impropriety where they are not devoting full-time performance to their judicial duties, but receiving full compensation for their judicial duties. Taking time to film the pilot will not implicate Canon 6A if the inquiring judge schedules the filming at a time that does conflict with judicial responsibilities and carefully conducts all actions related to the endeavor in a manner that comports with the referenced canons.

In the November 2018 edition of the Florida Court Education Council’s Judicial Ethics Benchguide, author Blan Teagle synthesized the language of the canons and the reasoning of prior JEAC opinions and deduced eight relevant factors that provide a helpful framework for a judge to consider when deciding whether to engage in an extrajudicial or quasi-judicial activity with or without compensation. If the answer to any one of the following eight questions is yes, then it is recommended the judge decline to engage in the activity. The eight factors are:

1. Whether the activity will detract from full time duties;
2. Whether the activity will call into question the judge’s impartiality, either because of comments reflecting on a pending matter or comments construed as legal advice;
3. Whether the activity will appear to trade on judicial office for the judge’s personal advantage;
4. Whether the activity will appear to place the judge in a position to wield or succumb to undue influence in judicial matters;
5. Whether the activity will lend the prestige of judicial office to the gain of another with whom the judge is involved or from whom the judge is receiving compensation;
6. Whether the activity will create any other conflict of interest for the judge;
7. Whether the activity will cause an entanglement with an entity or enterprise that appears frequently before the court; and
8. Whether the activity will lack dignity or demean judicial office in any way.

On the questions related to the television pilot, the Committee finds that a one-time, private audition outside of Florida and receipt of related compensation and reimbursement for travel expenses would not be prohibited. The Committee recommends however, the following if the inquiring judge elects to film the pilot: 1) to carefully consider the eight questions above as events unfold with producer of the show; 2) at all times conduct herself/himself so as to not demean the judicial office or cast reasonable doubt on her/his capacity to act impartially; 3) schedule the pilot on a week-end or when it will not adversely impact or conflict with the judge’s docket or impose on other colleagues to avoid interference with the proper performance of judicial duties; and 4) to comply with annual ethics disclosure requirements of compensation and/or gifts received by sitting judges. Of course, pursuant to Canon 1, the inquiring judge must at all times maintain high standards of conduct so that the integrity of the judiciary is preserved.

If the producer of the show extends an offer, the Florida Code of Judicial Conduct would prevent the inquiring judge from entering into the proposed arrangement for compensation, while also serving as a sitting judge. The proposed arrangement would lend judicial prestige to the commercial interests of the producer in violation of Canon 2B; the activity could involve improper public comment upon a pending or impending proceeding in violation of Canon 3B; and the activity would cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, and interfere with the proper performance of judicial duties in violation of Canons 4 and 5.

 

REFERENCES

Art. V, §13, Fla. Const.
Fla. Code Jud. Conduct, Canons 1, 2A, 2B, 3B(1), 3B(8), 3B(9), 4A, 5A, 5D(1)(b), 5D(3), 6A.
Fla. JEAC Ops: 18-1, 12-07, 11-18, 11-16, 08-21, 07-21, 07-09, 00-16, 97-35, 96-25, 91-5, 81-12, 77-14
Judicial Ethics Bench Guide, Florida Court Education Council, November, 2018.

_____________


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.

Participating 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, Justice Barbara Lagoa, Judge Matthew C. Lucas, 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