December 3, 1986

Opinion No. 86/16
Canons 5B(1), 2 and 4

re: Membership on Legal Aid Society Board of Trustees; enforcement of performance of Bar required services or payment to Society

Please excuse the delay in answering your letter of August 28, 1986. The reason for the delay in furnishing a response to your inquiry arose out of opinion 74/17 of the Committee on Standards of Conduct Governing Judges. I will discuss this point after addressing your initial question.

You explain that you are a trustee of the Bar Association Legal Aid Society. You asked for the Committee's opinion concerning whether the Canons of Judicial Conduct prohibit a judge, serving as a trustee of a legal aid society, from contacting members of a bar association to remind them to fulfill their legal aid obligation by paying $250 in-lieu-of-service payments.

The Committee, with the exception of one member, concluded that the Canons of Judicial Conduct would prohibit a judge from contacting lawyers to remind them to pay $250 as an alternative legal aid obligation. Such conduct would constitute fund raising. Canon 5B(2) provides:

(2) A judge should not solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of his office for that purpose, but he may be listed as an officer, director or trustee of such an organization...

In my initial comments I mentioned that opinion 74/17 raised an additional question concerning your inquiry. I have attached a copy of opinion 74/17 for your information. In opinion 74/17 the Committee unanimously concluded that because the legal aid society in which the inquiring judge served as a director provided legal services for indigents that such service would be prohibited by Canons 2, 4 and 5B(1). The Committee recognizes the fact that you serve as a trustee of the legal aid society pursuant to a special act of the legislature and we express no opinion as to the conflict, if any, that may exist between the special act and the Canons of Judicial Conduct. While the Committee in 74/17 concluded that Canon 5B prohibits a judge from serving on the board of directors of a legal aid society, a majority of the responding members of this Committee concluded that Canon 5B does not unequivocally prohibit a judge from serving on the board of directors of a legal aid society. The commentary to Canon 5B(1) provides:

The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which he is affiliated to determine if it is proper for him to continue his relationship with it. For example, in many jurisdictions, charitable hospitals are now more frequently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.

The Committee concluded that if the Legal Aid Society engages in litigation directly or represents impoverished people through the use of staff counsel, that your continued service on the Board would be prohibited by Canon 5B(1). On the other hand, if the Legal Aid Society acts only as an administrative body to assign cases to lawyers on a pro bono basis, and does not make policy decisions of political significance or that may imply commitment to causes that may come before the courts for adjudication, that Canon 5B(1) would not preclude your continued service as a trustee. We find support for this conclusion in Canon 4C:

C. He may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice...

The Commentary to Canon 4C explains:

As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that his time permits, he is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law.

Extrajudicial activities are governed by Canon 5.

We recognize that this opinion conflicts with opinion 74/17 to the extent that we have concluded that Canon 5B does not unequivocally prohibit a judge from serving as a director of a legal aid society. Two members of the Committee expressed the view that opinion 74/17 correctly interprets Canon 5B(1) as a prohibition against a judge's service on the board of directors of a legal aid society and two members suggested that since you did not raise the question we should not address it. In summary, though we do not express a formal opinion as to the propriety of your continued service as a trustee of the Legal Aid Society. We suggest that you view the functions of the legal aid society in the light of the canons mentioned and the discussion which we have set forth above.

We have based our opinion on the information furnished in your letter. The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges 327 So2d 5 (Fla. 1976).

We appreciate your inquiry and trust that the foregoing information will be of some assistance to you.

Very truly yours,

John W. Dell

cc: All Committee Members

Participating members: Judges Blanchard, Booth, Dell, Frank, Goldstein,
Green, Grube Tedder and Attorney M. Craig Massey

All reference to the inquiring judge is deleted from the copies sent to the following individuals.

Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Kathleen T. Phillips, Esq., Chairman, Judicial Qualifications Commission.
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida