February 1, 1995
PERSONAL AND CONFIDENTIAL
(Amway Network Marketing (Program
Re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated December 14, 1994
You inquire whether there is any ethical prohibition for a judge to participate in the network marketing program known as "Amway". The program consists of recruiting participants for a "network" and then receiving a percentage from the sales of each recruit.
Although such participating is not per se prohibited by the Code of Judicial Conduct, six responding members believe it would be inadvisable for a judge to recruit a "network" pursuant to several sections of Canon 5D(1) and 5D(4). First, there is a great potential for exploiting the judge's judicial position, either by the judge in the recruiting process or by others in the judge's "network". Secondly, since a large "network" could involve numerous people, some of whom the judge may not have even met, it could potentially require a judge to be frequently disqualified.
Such participation may also be violative of Canons 4(D)(2)(c) which prohibits participation in membership solicitation which may be reasonably perceived as coercive. Additionally, Canon 5C(32)(b)(i) and (ii) state that a judge "should not" personally participate in the solicitation of funds or other fund raising activities" or "personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive...". Although these provisions deal with governmental, civic or charitable activities, the Committee believes the same rationale would certainly apply to "for-profit" activities.
However, there are prior opinions that attempt to allow "for-profit" ventures where certain prophylactic measures were deemed sufficient to alleviate potential problems. For example, in Opinion 88-6, the Committee approved a judge offering his boat for charter with the following conditions:
(1) No solicitation of charters from any lawyer practicing in his court.
(2) His office or title as judge could not be connected with the boat.
(3) The charter business would be conducted exclusively through his home telephone on personal time after hours, on weekends, and during authorized vacation.
(4) Charter rates would be competitive with prevailing rates.
(5) A complete list of the names and address of all persons and entities that chartered his boat and all financial transactions would be included in with his annual financial disclosure.
Since it may be possible to construct adequate safeguards for a judge to participate in a "network" marketing scheme such as "Amway", the Commitee would note that the propriety of involvement may depend on a case by case review of the degree of involvement.
The majority of the Committee would note that we do not believe that there is any ethical impropriety in enrolling in or in joining a program or business such as "Amway" to become eligible to buy products at "discount" or reduced prices without actively selling products or recruiting large networks. However, ethical problems quickly arise with the complications and numerous potential conflicts of interest that are involved in recruiting and making money from large networks.
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 judges, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 327 So.2d 5 (Fla. 1976).
Very truly yours,
Steve Rushing, Chairman
Committee on Standards of Conduct
CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)
Participating Members:Judges Doughtie, Farina, Green, Kahn, Patterson, Rushing, Silverman, Taylor, Tolton, and Edwards, Esq.