FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-03
Date of Issue: February 11, 2020

ISSUES

MAY A JUDGE PARTICIPATE IN A PANEL DISCUSSION ON HUMAN TRAFFICKING AT AN EVENT SPONSORED BY A NONPROFIT ORGANIZATION?

ANSWER: Yes.

FACTS

The inquiring judge has been asked by a nonprofit 501(c)(3) organization to serve on a panel discussing the issue of human trafficking. The event is not a fundraiser.

 

DISCUSSION

Few current issues currently facing our legal system are as compelling as the tragedy of human trafficking. We conclude that the inquiring judge’s desire to participate in a panel discussion on this subject would be entirely appropriate because Florida 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 [of] government.” Code of Judicial Conduct, Canon 4B.

We do caution that Canon 4A places certain restrictions upon judges who may wish to speak out on legal issues. Among other things they should not conduct themselves in a manner than might “cast reasonable doubt on [their] capacity to act impartially as a judge,” demean the judicial office, appear coercive, or interfere with the proper performance of their duties. In Fla. JEAC Op. 2019-02 we provided a “laundry list” of “factors for a judge to consider when deciding whether to engage in an extrajudicial or quasi-judicial activity with or without compensation” and noting that “[i]f 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.

While these guidelines are self-explanatory, we add the following comments. Brief, one-time appearances on a panel such as the one contemplated by the inquiring judge should not detract from the judge’s professional duties; factor 1 is aimed primarily at extensive service on committees, book tours, time-consuming teaching obligations, and similar activities. Running afoul of factor 5 also may be remote given that the judge will be appearing before a nonprofit organization without soliciting funds for same, and there appears to be minimal likelihood the organization will frequently engage in litigation (factor 7). Of course, if the judge determines otherwise, service on the panel should be reconsidered.

Factor 2 should not rear its head unless the judge goes beyond providing unbiased information to make comments as to how the judge might rule if faced with a human trafficking case. For example, in Fla. JEAC Op. 2012-34, we expressed concern that critiquing a book by a famous attorney written about a famous case could “foreshadow how the judge might rule on a contested legal issue” and thus “cast reasonable doubt on the inquiring judge’s capacity to act impartially as a judge or lead to frequent disqualification of the inquiring judge.” Similarly, in Fla. JEAC Op. 1996-25 we found that a judge’s potential arrangement to appear on a television station “to comment about, explain to, and educate the public concerning diverse legal matters including explaining and clarifying the proceedings during high publicity trials” would cast doubt on the judge’s capacity to act impartially because “it would be nearly impossible for the judge to avoid injecting his own legal opinion or foreshadowing how he might rule on a contested legal issue.”

The judge did not identify (and may not know) the other persons who will participate in the panel discussion. Conceivably it could include legislators, prosecutors, law enforcement personnel, or others whose approach to the issue might be seen as other than totally neutral. However, if so, this fact standing alone should pose no problem for the judge. For example, in Fla. JEAC Op. 2018-01, the judge obtained approval to preside over a mock trial intended to aid police officers in becoming more familiar with courtroom procedures. The opinion cites to a number of others where judges wanted to teach at law schools, police academies, or seminars sponsored by advocacy groups. So long as those judges did not depart from strictly neutral approaches to the subject matter, we deemed there to be nothing improper about participating.

 

REFERENCES

Code of Judicial Conduct, Canons 4B.

Fla. JEAC Ops. 1996-25, 2012-34, 2018-01, 2019-02

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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 W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

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, Judge Jeffrey T. Kuntz, 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, Supreme Court Clerk
All Committee Members
General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel