July 13, 1993
(Canon 7 - Political Activity by Judicial Law Clerks
Re: Committee on Standard of Conduct Governing Judges inquiry
Some time ago you requested a written advisory opinion from this Committee regarding certain political activities of judicial trial law clerks. These activities were to be pursued during the clerk's personal time. Your questions were as follows:
1. Opinion 91-23 and a subsequent opinion state the Code of Judicial Conduct governs the conduct of judicial assistants. Does the Code of Judicial Conduct govern the conduct of judicial trial court law clerks?
2. Even if the Code of Judicial Conduct governs the conduct of judicial trial court law clerks, may judicial trial court law clerks participate in a city/state/federal partisan election campaign or in a judicial election campaign by:
a. contributing financial support to a candidate in a city/state/federal partisan election campaign or to a candidate in a judicial election campaign.
b. soliciting financial support for a candidate in a city/state/federal partisan election campaign or for a candidate in a judicial election campaign.
c. making in kind contributions of goods to a candidate in a city/state/federal partisan election campaign or for a candidate in a judicial election campaign.
d. attending fund raising activities for a candidate in a city/state/federal partisan election campaign or for a candidate in a judicial election campaign.
e. aiding the campaign staff of a candidate in a city/state/federal partisan election campaign or for a candidate in a judicial election campaign by:
1. contacting persons in the community at random by telephone encouraging them to vote for a particular candidate.
2. contacting persons in the community and encouraging them to vote for a particular candidate.
3. distributing campaign information to persons in the community.
4. addressing and filling envelopes in order to support the candidate's mailing efforts.
5. providing personal transportation for the candidate to and from campaign events.
6. providing personal transportation for persons in the community to enable them to vote on election day.
7. attending a campaign event on election night once the polls have closed.
The Florida Supreme Court in a letter to the Committee dated 24 September 1992, advised the Committee as follows on the subject:
The Court discussed (in conference 9-8-92) opinion 92-33 of the Committee on Standards of Conduct Concerning Judges which states that a judicial assistant is prohibited by canon 7B from participating in partisan political activity. The justices expressed the view that the opinion raised serious First Amendment implications with respect to the rights of judicial assistants to express themselves. The justices believe that in this respect a judicial assistant occupies a position analogous to a spouse who is expressly permitted by the commentary to canon 7B to engage in political activity, provided it is done in the name of the individual family member and independent of the judge and without reference to the judge or the judge's office. While canon 7B(1) (b) prohibits employees subject to the judge's direction or control from doing what the judge is prohibited from doing, , in this context the justices interpret this provision to mean that a judicial assistant may not act as the judge's representative in any partisan political activity. It is the unanimous opinion of the Court that a judicial assistant or other employee subject to the judge's direction or control may not be prohibited from engaging in partisan political activity during personal time, provided such activity is conducted entirely independent of the judge and without reference to the judge of judge's office. The Court requested the clerk to notify the committee of its view in this matter.
Individual committee members have offered the following comments on your inquiry.
One committee member states the Florida Supreme Court's letter does not prohibit partisan political activity by a law clerk provided it is conducted during personal time and provided that such activity "is conducted entirely independent of the judge and without reference to the judge and the judge's office." This member believes that a case-by-case determination has to be made whether the circumstances of a clerk's partisan political activity reflects on the judge or the judge's office.
In particular, this member believes a law clerk could contribute to a partisan political candidate, attend fund raising activities and aid the campaign staff of a partisan political candidates provided the law clerk not use any information obtained from judicial employment as a basis for determining which persons will be solicited for support.
Further, this member does not believe a law clerk should personally solicit financial support for a political candidate. This member believes there is too great a danger that political contributions will be given in response to solicitation by a judge's law clerk or judicial assistant in the belief the contribution will result in a favorable response when a request is made to the court. For example, a political contribution to a judicial assistant's solicitation could result in an earlier hearing date.
This member concludes that every judge should discuss with the judge's staff at the time of hiring the limitations that are placed on the judge by the code of Judicial conduct and what the judge expects from the staff in this regard. Nothing inadvertently implies any judicial involvement with political activity should be allowed.
Another member agrees with the Florida Supreme Court that judges cannot regulate the political activity of their employees anymore that they could regulate the political activity of judicial spouses.
Four members state they do not believe that judicial assistants and law clerks are subject to the Code of Judicial conduct.
One member suggests the Florida Supreme Court issue a code of conduct (written ethical principles) for law clerks and judicial assistants. He suggests the model code of conduct for nonjudicial employees published in Judicature, Vol. 73/No.3 Oct.-Nov. 1989, page 138 by the American Judicature Society can be used as a guide or the basis of the chief judge's administrative order to guide employees.
In addition this member believes the following articles would be helpful as reference:
Ethical Conduct of Non Judicial Employees: A Proposed Model Code by David Ozar, Cynthia Kelly and Yvette Begue, Judicature, Vol. 73/No.3 Oct. 1989, page 126.
Ethical Conduct of State Court Employees and Administrators: The Search for Standards, Judicature, Vol. 71/No. 5, Feb. 1988.
Judicial Staff and Ethical Conduct by Scott Makar, The Florida Bar Journal, Vol. LXIV, No 10 Nov. 199,[sic] page 10.
The "Other" Code of Ethics--The Code for Judicial Conduct; the Unique Ethical Problems of Lawyers Who Work For The Courts, by Judge Anne C. Booth - a CLE lecture outline in Government Lawyer Ethics published by the Governmental Lawyer Section of The Florida Bar, Oct. 1992.
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).
Harvey Goldstein, Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Office of State Court Administrator (name of Judge deleted from this copy)
Participating members: Judges Booth, Dell, Doughtie ,Green, Levy, Farina, Goldstein, Rushing, Tolton and Clarke, Esq.