October 25, 1995


PERSONAL AND CONFIDENTIAL

OPINION 95-37

Judge authoring articles
attorney's fees


In re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated August 1, 1995


You inquire whether you can write a biweekly column concerning the issue of attorney's fees which will be published in the Daily Business Review. This periodical is circulated in Dade, Broward and Palm Beach counties and has a readership of over 10,000 people, 40% of whom are attorneys. The purpose of the articles is to "analyze recent Florida appellate and Supreme Court decisions in the attorney's fees area and to educate the readers." You state you intend to point out some of the problems that such decisions may create and "offer suggestions as to how to remedy these problems."

You included a list of suggested topics including (1) when an attorney may recover fees for litigation the issue of attorney's fees, (2) what is permissible in an offer of judgment, (3) wisdom of the Moritz decision, (4) difficulty of calculating attorney's fee, (5) Florida Supreme Court decisions that have created, rather than resolved, appellate issues and (6) the standard of proof when an attorney sues a client for a fee and how the fee is calculated.

You intend to sign the article as "[name of judge] - author of Attorney's Fees in Florida, Butterworth Publications 1-800-786-1847."

Canon 4B allows a judge to "speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, and the administration of justice, subject to the requirements of this Code." The commentary further provides, in part:

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 time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law.

Additionally, Canon 4A requires a judge to conduct his or her quasi-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."

The Committee has previously found that it is permissible for a judge to write a treatise for sale and publication (Opinion 76-17), to write an article in Spanish for a Spanish newspaper (Opinion 73-8); to give a guest editorial on television regarding general reform in the area of bail bonds (Opinion 81-12) and to publish a book for the purpose of helping parents teach their children about the consequences of crime (Opinion 82-5).

Therefore, the eight responding members agree that your proposed activity is permitted under Canon 4 and the above-cited opinions as it is an activity to improve the law, the legal system, and the administration of justice, with the caveat that you should refrain from stating how you would rule on a related question. Further, you need to be careful as to how you "offer suggestions as to how to remedy these problems" caused by appellate or Florida Supreme Court decisions so that you do not cast doubt on your impartiality.

There could be some perception that your intended signature of the article which would include your name, the title of the book you wrote and the phone number of the publisher might demean the judicial office as you are also advertising your book. You do not identify yourself as a judge, although you could probably do so pursuant to Opinion 82-5. Additionally, you are allowed to write a treatise for publication and sale. However, one member of the Committee cautions:

While it is laudable for a judge to write so as to educate the public and lawyers, he should not use the opportunity to bolster sales for a book in which he has a personal financial interest. To allow a judge to do so would arguably permit him to use his office for private gain or benefit.

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,


Oliver L. Green, Jr., Chairman
Committee on Standards of Conduct
Governing Judges


CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)

Participating Members:Judges Dell, Doughtie, Green, L. Kahn, Patterson, Rushing, Silverman and Tolton