Opinion Number: 99-3
Date of Issue: January 22, 1999
WHETHER THE FORMER LAW FIRM OF A NEW JUDGE MAY SPONSOR AND
PAY THE EXPENSES FOR A RECEPTION FOR THE NEW JUDGE, IMMEDIATELY
FOLLOWING HIS INVESTITURE?
WHETHER ATTORNEYS IN A NEW JUDGE'S COMMUNITY MAY SPONSOR AND PAY
THE EXPENSES FOR A RECEPTION FOR A NEW JUDGE ONE WEEK AFTER HIS
INVESTITURE?
Whether the former law firm of a new judge may sponsor and pay
the expenses for a reception for the new judge, immediately following
his investiture?
ANSWER: YES.
Whether attorneys in a new judge's community may sponsor and
pay the expenses for a reception for a new judge one week after
his investiture?
ANSWER: YES.
The inquiring party has recently taken the bench. The new judge's
former law firm wishes to sponsor and pay the expenses for a reception,
immediately following the judge's investiture.
In addition, some attorneys in the new judge's community want
to sponsor and pay the expenses for a reception for the new judge
one week after his investiture.
The inquiring party wants to know if it is ethically appropriate
for him to accept these benefits?
Canon 5D (5) limits the gifts that judges may receive. Specifically,
this Canon states that 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, and
then it lists exceptions to this prohibition. None of the exceptions
in Canon 5D(5) (a), (b), (c), (d), (e), (f), and (g) apply to
the facts of this matter.
Canon 5D(5)(h), however, permits a judge to accept "any other
gift, bequest, favor or loan 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."
In Opinion 76-22 the inquiring judge asked
whether it was permissible to accept a gift from a former employer upon ascending
the bench. The former employer presented the judge with a gavel. The majority
of the Committee unanimously found that "the acceptance of a gift under
these factual circumstances would not conflict with the Code of Judicial Conduct.
Canon 5C(4) sets forth with particularity those circumstances under which the
acceptance of a gift is either permissible or impermissible. A judge's ascendancy
to the Bench and the presentation of a gift incident thereto and in connection
therewith fall within the spirit of the permissible limitations of Canon 5C(4)."
[Canon 5C(4) has been renumbered to Canon 5D(5).]
The Committee found in Opinion 94-12 that
it was permissible for a judge to accept $500.00 in gift certificates from anonymous
donors and the Jacksonville Women Lawyer's Association in honor of the judge's
retirement.
Before a judge accepts a gift the judge must determine if the donor is 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. In Opinion
93-67 the Committee found that there was no problem with a judge receiving
Christmas gifts from tenants of some business property that the judge owned.
The Committee did however, make the following observation: "We have assumed
that the donor in your case is not a party or other person whose interests have
recently come or may likely come before you. Since the donor is a tenant in
a business you own, you would not be presiding over that person's case in any
event."
The Commentary to 5D(5)(h) states that judges are prohibited from
accepting gifts, favors, bequests or loans from lawyers or their
firms if they have come or are likely to come before the judge.
Assuming the inquiring judge will recuse himself in cases handled
by his previous law firm, then the judge will not have attorneys
from his previous firm appear before him. Therefore, the judge
will not run afoul of the prohibitions in 5D(5)(h), and the inquiring
judge may have his investiture reception paid by his former law
firm. The inquiring judge will, however, have to make a disclosure
on this annual financial disclosure form if the amount of the
reception is over $100.00 pursuant to Canon 6B. All ten of the
participating Committee members agree on this part of the inquiry.
Seven of the ten participating Committee members concurred that it is permissible
for the new judge to have a reception sponsored and paid for by attorneys in
his community one week after his Investiture. Canon 2 requires a judge to avoid
the appearance of impropriety in all his activities. Certainly, the public and
the bar could question a judge's impartiality if a law firm appeared before
the judge which had previously sponsored a reception honoring the judge. Yet,
it is permissible for judges to accept campaign contributions from lawyers.
It is also permissible for a law firm to sponsor a reception for judges who
are up for re-election. See Opinion 93-62.
Consequently, seven members of the Committee could not find a distinction between
permitting judges to accept these types of political activities by lawyers and
permitting lawyers to honor a new judge by hosting a reception for him or her.
The judge, however, for a reasonable period of time, should disclose the fact
that a law firm hosted this reception in each case that members of the law firm
appears before the judge. (See Opinion 89-3.
The inquiring judge asked if he must disclose his social relationship with an
attorney and the fact that the attorney permitted the judge to use his North
Carolina cabin. The Committee stated: "It is the determination of a majority
of the Committee that you must disclose the relationship with and the benefit
received from the attorney whenever that attorney appears in a proceeding before
you.")
Three of the participating Committee members however disagreed
with the majority. One of the dissenting Committee members stated:
" ŠI strongly disagree that it would be proper for attorneys in a new judge's community to sponsor and pay for a reception. First, it has been the well-reasoned tradition in the -- Circuit that judges pay for their own reception, if they want one, to avoid any appearance of undue influence. Second, if enough attorneys want to sponsor such a reception, it should be through their local Bar Association so that there would be no appearance of impropriety or attempt to curry favor with a judge. Third, the only reason I can see for attorneys to sponsor such a reception would be to improperly influence a judgeŠespecially after his former firm is already holding one reception, which I assume they would be able to attend to deliver their congratulations. This smacks of a blatant attempt to curry favor. The cases cited are all distinguishable in that they deal with parties that would not be 'likely to come or whose interests have come or are likely to come before the judge.' Who is more likely to come before a judge than the attorneys in the community? Although the judge could recuse himself from all the attorney cases, a judge has a duty to minimize the number of cases in which the judge is disqualified or recusedŠAt the very least, the judge would be creating a continuing forum to be disqualified from hearing assigned cases and thus create an undue burden for fellow judges to accept recused cases."
The other dissenting judge stated:
"ŠI concede there are similar activities and opinions during a judicial election that arguably and logically allow this, but I feel there is a bright line distinction of what conduct is appropriate during a judicial election and on other occasions."
Florida Code of Judicial Conduct Canons 2, 5D(5)(a), (b), (c),
(d), (e), (f), (g), (h), and 6B.
Florida Judicial Ethics Advisory Committee Opinions: 76-22,
89-3, 93-62,
93-67 and 94-12.
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 part, 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, 698 So. 2d. 834 (Fla. 1997). However, in reviewing the
recommendations of the Judicial Qualifications 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 Lisa D. Kahn, Chair,
Judicial Ethics Advisory Committee, The Harry T. and Harriette
V. Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera,
Florida 32940-8006.
Participating Members: Judges Cardonne, Dell, C. Kahn, L. Kahn,
Patterson, Rodriquez, Rushing, Smith, Swartz, and Tolton.
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 inquiring judge deleted from this copy)