Florida Supreme Court

Judicial Ethics Advisory Committee

Opinion Number: 98-11

Date of Issue: July 7, 1998

 

JUDGE ESTABLISHING AND MAINTAINING A DEFENSE FUND TO DEFEND AGAINST CHARGES OF UNETHICAL BEHAVIOR BROUGHT BY THE JUDICIAL QUALIFICATIONS COMMISSION

 

ISSUE

May a judge establish and maintain a defense fund to defend against charges of unethical behavior brought by the Florida Judicial Qualifications Commission? ANSWER: A majority of the committee finds that a judge may establish and maintain a fund to defend against charges of unethical behavior by the Judicial Qualifications Commission. The defending judge must adhere to certain conditions and limitations. Specifically, the judge is prohibited from taking part in the solicitation of contributions and must not accept contributions from a party or other person who has come or is likely to come or whose interest have come or are likely to come before the judge (including attorneys). All permissible contributions in excess of $100.00 must be reported in the same manner as the judge reports compensation in Canon 6B. Additionally, the judge is responsible for,inter alia, identifying attorneys who have or are likely to practice before the judge and declining contributions from them; determining which prospective donors have been litigants before the judge and declining contributions from them; determining who has an interest which may come before the judge and declining contributions from those individuals or organizations; determining how to disburse the funds (The funds must be disbursed as intended, going directly to counsel for fees and related expenses, and not to the judge.); and disbursing any excess funds to the donors pro rata.

FACTS

The Florida Judicial Qualifications Commission has charged the inquiring judge with numerous violations of the Code of Judicial Conduct. The judge has denied the allegations claiming that there has been no misconduct and no violation of the Code of Judicial Conduct.

The judge has incurred and continues to incur expenses related the defense of the charges. The expenses include the hiring and payment of legal counsel.

The public and the legal community have made numerous requests to engage in fundraisers and create a legal defense fund for the judge. The judge seeks an opinion from this committee as to the ethical propriety of establishing and maintaining a defense fund from which donated funds would be used to pay for expenses related to the defense of the charges.

 

DISCUSSION

Florida's Code of Judicial Conduct does not directly address the issue of whether a judge, accused of unethical conduct by the Judicial Qualifications Commission, create and maintain a legal defense fund. Even though this committee has written on this issue on several occasions, it is helpful to re-examine Floridaís Code of Judicial Conduct and our prior advisory opinions, as well as to review the more recent opinions of our sister advisory committees. See, Opinion 85-12 (August 22, 1985); Opinion 77-8 (March 31, 1977); Opinion 75-9 (April 9, 1975).

The text of the Canons and sections of the Code of Judicial Conduct are binding on judges and are intended to govern their conduct. Preamble to the Code of Judicial Conduct. Canon 5 of the Code is entitled, "A Judge Shall Regulate Extrajudicial Activities to Minimize the Risk of Conflict With Judicial Duties." Canon 5D and its subsections, in part, pertain to the financial activities of judges and those situations in which a judge may accept, gifts, bequests, favors or loans. Specifically, Canon 5D(5) provides, in pertinent part:

A judge shall not accept, and shall urge members of the judge's family residing in the judge's household not to accept, a gift, bequest, favor or loan from anyone except for:

(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under Canon 3E;

(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and, if its value exceeds $100.00, the judge reports it in the same manner as the judge reports compensation in Section 6B. [emphasis added]

The Commentary to Canon 5D(5)(h) is helpful to our analysis. It provides:

Section 5D(5)(h) prohibits judges from accepting gifts, favors, bequests or loans from lawyers or their firms if they have come or are likely to come before the judge; it also prohibits gifts, favors, bequests or loans from clients of lawyers or their firms when the clients' interest have come or are likely to come before the judge. [emphasis added]

Twenty-three years ago, in Opinion 75-9 (April 9, 1975), this committee first addressed the issue of whether a judge could ethically obtain contributions to pay for attorney's fees and costs incurred in connection with a judge's defense of investigations and charges. The inquiring judge requested our advice on the appropriate manner and means by which a "defense fund" could be set up, as well as on the expenditure and reporting of such funds on the judge's behalf.

In response to the inquiry, a majority of this committee concluded that the solicitation and acceptance of any contributions from any attorney, under the circumstances described, was impermissible. The committee declined to provide specific suggestions as to the manner and means to accomplish the judge's objective.

Two years later, in Opinion 77-8 (March 31, 1977), a judge asked this committee about the advisability of establishing a "defense fund." The inquiring judge stepped down from the circuit court pending the outcome of pending criminal charges. The judge informed the committee that various individuals and attorneys had voluntarily offered financial assistance to defray the judge's legal expenses. The judge also advised us that he/she had not and would not solicit funds from anyone, and that no volunteered funds, to date, had been accepted.

The judge asked two questions. The first question was whether a judge is ethically permitted, either individually or through counsel, to accept unsolicited contributions to a "defense fund." The second question invited this committee to define the guidelines when accepting contributions to a "defense fund."

In response to the judge's inquiry, this committee held that a judge charged with a criminal offense may, under the facts described in the opinion request, accept unsolicited contributions to a "defense fund." In doing so, we clarified our previous decision in Opinion 75-9 (April 9, 1975), which had concluded that a "defense fund" was impermissible. We noted that Opinion 75-9 (April 9, 1975), is limited to solicited funds, rather than unsolicited funds. That clarification remains the same today.

In Opinion 77-8 (March 31, 1977), this committee took note that the creation of a legal defense fund might appear to create the appearance of impropriety in violation of Canon 2B ("A judge shall not lend the prestige of judicial office to advance the private interest of the judge or others."). We held, however, that any such appearance would be obviated if the judge receiving the funds had no means of learning the identity of the contributors.

Four committee members had suggested that the anonymity of the donors could be maintained if the contributions were given to an attorney who, in turn, would forward the funds to the judge's defense counsel. One committee member recognized that this could create a dilemma:

One member of the Committee, while agreeing that a defense fund may be established for the acceptance of unsolicited contributions suggests that a donor contributing less than $100 who does not have interests recently passed or likely to come before the donee judge may donate such funds without the funds having to be reported pursuant to Canon 6. If the value exceeds $100, however, it would be reportable. On the other hand, if an anonymous donor gave in excess of $100, only the amount would have to be reported. Receipt of anonymous donations would minimize any possible conflicts with Canon 2. [emphasis added]

By maintaining the donors' anonymity, the mandatory reporting provisions of Canon 6 would be frustrated, since the judge would not know what information is subject to reporting. Cf. New York Advisory Committee on Judicial Ethics, Opinion 96-33 (March 12, 1996) (The judge may not know the identity of the contributors; appropriate steps must be taken to shield the judge from acquiring such knowledge; the judge may not take part in the solicitation of any contributions; the funds will eventually be disbursed as intended, going directly to counsel and not the judge; and excess funds must be returned to the donors pro rata.); Maryland Judicial Ethics Opinion 85 (April 23, 1980) (The Maryland advisory committee concluded that the establishment of a blind trust is permissible.). Our committee's opinion is that the best approach is described in the position taken by the singular member of this committee. That member's view reflects the requirements of Canon 6 and sets forth the financial reporting requirements for the unsolicited contributions.

Accordingly, we recede from Opinion 77-8 (March 31, 1977), to the extent that we may have suggested that the identity of contributors be kept from the judge. A judge is required to know the identity of his or her contributors and the amount of any contributions in order to meet the financial reporting provisions of Canon 6.

The inquiring judge in Opinion 85-12 (August 22, 1985) used the procedure that we are adopting. The judge acknowledged that a detailed accounting of the contributions would be kept and that donations exceeding $100 would be reported in the judge's financial disclosure statement. We concluded that an indicted judge may accept contributions towards the judge's defense costs. However, a majority of this committee opined that the judge should not accept funds from attorneys.

In finding that judges were prohibited from accepting money from attorneys, we noted that Disciplinary Rule 7-110(a) of the Code of Professional Responsibility was entitled "Contact with Officials," and provided that, "A lawyer shall not give or lend anything of value to a judge, official, or employee of a tribunal." That provision has since been superseded by Rule 4-3.5 of the Code of Professional Responsibility. The new rule is entitled, "Impartiality and decorum of the tribunal," and it eliminates the complete prohibition of Rule 7-110(a). See, The Florida Bar Re: Regulating the Florida Bar, 494 So.2d 977 (Fla. 1986).

Therefore, to the extent that Opinion 85-12 (August 22, 1985) precludes all attorneys from contributing to a judge's defense fund, we recede from that opinion.

The judicial ethics advisory committees from our sister states have also addressed issues involving the creation and maintenance of "defense funds" for judges who are the subject of criminal or disciplinary charges. Each has permitted the forming of a defense fund to pay for legal fees, albeit with their own conditions and limitations. See, Illinois Judicial Ethics Committee Advisory Opinion 97-14 (July 9, 1997); New York Advisory Committee on Judicial Ethics Opinion 96-53 and 96-67 (June 13, 1996); New York Advisory Committee on Judicial Ethics, Opinion 96-33 (March 12, 1996); California Judges Association's Committee on Judicial Ethics, Opinion No. 33 (August 13, 1986); Maryland Judicial Ethics Opinion 85 (April 23, 1980).

In California Judges Association's Committee on Judicial Ethics, Opinion No.33 (August 13, 1986), the primary issue before that committee was whether a judge is ethically permitted under California's Code of Judicial Conduct to raise funds to defend himself before the Commission on Judicial Performance. The committee saw no ethical distinction between fund raising for a judge's campaign and fund raising for a legal defense.

The ethics committee held that a judge may accept contributions for his defense, but only from those whose interests have not and are not likely to come before the judge. In rendering its decision, the committee relied upon California Code of Judicial Conduct Canon 5C, which prohibits a judge from taking any gift from a "party or other person whose interests have or are likely to come before the judge." This provision is substantially similar to Florida's Canon 5D (5)(h) which prohibits a judge from taking any gift from a "party or other person who has come or is likely to come or whose interest have come or are likely to come before the judge."

The ethics committee acknowledged that for other than campaign contributions, there is no exception for legal defense costs from the "gift" limitations in the Code. The committee wrote:

The commentary, however, does not specifically allow any other form of gift to the judge from those whose "interests" have come or are likely to come before the judge. The effect of this Canon is to prevent the judge from accepting solicited - or unsolicited - gifts to his legal defense from any person or institution whose interest have come or are likely to come before the judge. This includes lawyers representing litigants before the judge as well as the litigants themselves. In either case, the donor's "interests" are involved in the proceeding before the court.

Likewise, in Illinois Judicial Ethics Committee Advisory Opinion 97-14 (July 9, 1997), the ethics committee held that a defense fund may be established for a judge charged with a crime. However, the fund must be established with caution. According to the committee, lawyers are permitted to contribute to it, so long as they have not practiced, and are unlikely to practice, before the judge. Judges would be permitted to contribute to the fund if their interests have not and are unlikely to come before the judge. Further, the judge's name may be used for fundraising activities that solely benefit the judge and cannot be used in joint fundraising activities with co-defendants.

Having reviewed Florida's Code of Judicial Conduct, our previous ethics advisory opinions, and those of our sister states, this committee adopts the following procedures and limitations when establishing and maintaining a "defense fund."

While a fund may be established and maintained to defend against charges of unethical behavior by the Judicial Qualifications Commission, the defending judge must adhere to certain conditions and limitations. Specifically, the judge is prohibited from taking part in the solicitation of contributions and must not accept contributions from a party or other person who has come or is likely to come or whose interest have come or are likely to come before the judge (including attorneys). All permissible contributions in excess of $100.00 must be reported in the same manner as the judge reports compensation in Canon 6B. Additionally, the judge is responsible for, inter alia, identifying attorneys who have or are likely to practice before the judge and declining contributions from them; determining which prospective donors have been litigants before the judge and declining contributions from them; determining who has an interest which may come before the judge and declining contributions from those individuals or organizations; determining how to disburse the funds (The funds must be disbursed as intended, going directly to counsel for fees and related expenses, and not to the judge.); and disbursing any excess funds to the donors pro rata.

The majority of those responding to this inquiry agree with this opinion. However, three committee members have expressed some concern.

One member of the committee, while agreeing in principal with this opinion, remains concerned about the "great appearance of impropriety of lawyers contributing to a Judge's defense fund."

Two members of the committee expressed some concern about the statement that a judge "must not accept contributions from a party or other person who has come or is likely to come, or whose interests have come or are likely to come before the judge." They state, "[We] agree what the judge may establish the fund. [We] have misgivings about the Canon 5D(5) limitations, because [we] do not believe Canon 5D(5) contemplated a legal defense fund, and [we] further see a very significant analogy between a legal defense fund and a campaign contribution fund." The members further noted:

[We] realize that the language that [we are] concerned with is faithful to the restrictions of Canon 5D(5). [We] believe, however, that the argument can be made that Canon 5D(5) never contemplated the type of "gift" that we are now talking about. [We] have difficulty seeing a significant difference between contributions to a defense fund, and contributions to an election campaign. Of course, disqualification does not apply solely on the basis of campaign contributions.

REFERENCES

Florida Cases: The Florida Bar Re: Regulating the Florida Bar, 494 So.2d 977 (Fla. 1986).

Florida Code of Judicial Conduct: Canons 2; 2B; 5; 5D; 5D(5); 5D(5)(e); 5D(5)(h); 6; 6B

Florida Judicial Ethics Advisory Committee Opinions: Opinion 85-12 (August 22, 1985); Opinion 77-8 (March 31, 1977); Opinion 75-9 (April 9, 1975).

Other Judicial Ethics Advisory Committee Opinions: Illinois Judicial Ethics Committee Advisory Opinion 97-14 (July 9, 1997); New York Advisory Committee on Judicial Ethics Opinion 96-53 and 96-67 (June 13, 1996); New York Advisory Committee on Judicial Ethics, Opinion 96-33 (March 12, 1996); California Judges Association's Committee on Judicial Ethics, Opinion No. 33 (August 13, 1986); Maryland Judicial Ethics Opinion 85 (April 23, 1980).

Code of Professional Responsibility: 4-3.5; Disciplinary Rule 7-110(a)

__________________

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 by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, Opinion No. 90,133 (Fla. September 4, 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th Street #513, Miami, Florida 33125.

Participating Members: Judges Cardonne, Charles Kahn, Lisa D. Kahn, Patterson, Rodriguez, Rushing, Silverman, Tolton, and Attorney Blanton

 

Copies furnished to:

Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of judge deleted from this copy)