FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 00-25
Date of Issue: August 22, 2000

ISSUES

MAY A JUDGE RETURN SURPLUS CAMPAIGN FUNDS PRO RATA TO EACH CONTRIBUTOR, IF INCLUDED AMONG THE CONTRIBUTORS ARE LAWYERS WHO MAY APPEAR BEFORE THE JUDGE?

ANSWER: Yes.

MAY A JUDGE RETURN SURPLUS CAMPAIGN FUNDS PRO RATA TO CONTRIBUTORS, INCLUDING LAWYERS, WOULD THE FAILURE OF A LAWYER TO NEGOTIATE SUCH A REFUND CREATE AN APPEARANCE OF IMPROPRIETY ON BEHALF OF THE JUDGE?

ANSWER: The Committee declines to answer this question.

MAY A JUDGE PARTICIPATE AS AN OFFICER OR DIRECTOR OF THE LOCAL KIWANIS CLUB FOUNDATION AND THE LEGAL AID SOCIETY?

ANSWER: Yes as to the Kiwanis Club Foundation; probably no as to the Legal Aid Society.

FACTS

The inquiring judge was recently elected to the circuit bench by qualifying without opposition. The judge-elect wishes to know whether he may take the actions suggested by the above-stated issues.

DISCUSSION

With regard to the first issue, the question of disposition of surplus campaign funds is controlled by substantive law, section 106.141(4)(a)., Florida Statutes (1999). The statute allows the candidate to "[r]eturn pro rata to each contributor the funds that have not been spent or obligated." A successful judicial candidate may return surplus funds to contributors, even if lawyers are included among those contributors.

As to the second question, the Committee declines to respond because the question raises a hypothetical future act of a campaign contributor as opposed to a contemplated action of the inquiring judge. The contemplated judicial action in this case is the return of the surplus contribution, already addressed above. The responses of this Committee are limited to contemplated judicial and nonjudicial actions by a judge or a candidate. Nevertheless, if the judge has reason to strongly suspect that a lawyer will not cash the rebate check, the judge should advise the lawyer that such an action on the part of the lawyer would put the judge in an uncomfortable position.

As to the final question, a judge may serve as an officer or a director of a nonprofit organization such as the local Kiwanis Club Foundation. Canon 5 of the Code of Judicial Conduct generally governs extrajudicial activities and Canon 5C(3) provides the specific parameters in which a judge may serve as an officer, director, trustee, or non-legal advisor of a charitable or civic organization. So long as the inquiring judge complies with this section of the Code of Judicial Conduct, he may serve as a director of the Kiwanis Club Foundation.

Whether a judge may serve as an officer or director of the Legal Aid Society depends specifically upon the organization of the society in question. Many years ago this Committee determined that a judge may not serve as director of the Legal Aid Society because such service would tend to convey an appearance of partiality by the judge to the attorneys of that organization. See Opn. 74-17. In a subsequent opinion, however, the Committee noted that Opinion 74-17 is not an absolute prohibition against service on the board of the Legal Aid Society. See Fla. JEAC Op. 86-16.

Specifically, in Committee Opinion 86-16, the inquiring judge wondered if he could continue service on the Legal Aid Society board of trustees. This Committee mentioned the commentary to former Canon 5B(1), specifically noting, "[T]he boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication." Accordingly, the Committee concluded that if the Legal Aid Society engages in litigation directly or represents impoverished people through the use of staff counsel, the judge's continued service on the board would be prohibited by the Code of Judicial Conduct. On the other hand, if the Legal Aid Society acts only as an administrative body to assign cases to lawyers on a pro bono basis and does not make policy decisions of political significance that would imply commitment to causes that may come before the courts for adjudication, the Code would not preclude service as a trustee.

More recently, in Opinion 97-6, the majority of this Committee found that the Legal Aid Society is not necessarily an organization "devoted to the improvement of the law, the legal system, or the administration of justice," as those terms are utilized in Canon 4D. Instead, the Legal Aid Society may very well be in the nature of a law firm that limits its representation to indigent clients. See Fla. JEAC Op. 97-6. Again, the inquiring judge must look very closely at the nature of the Legal Aid Society in question. In particular, under the guidelines set out in Committee Opinion 97-6, the inquiring judge must look very closely to whether the specific Legal Aid Society under consideration "is frequently involved in litigation and adversary proceedings that are likely to come before the inquiring judge, as well as before the court of which this judge is a member." Committee Opinion 97-6 also observes that the topic of legal aid as an organization supported, as least in part, by governmental funding, is a very heated political issue. In that opinion, the judge had inquired about the propriety of fundraising among other judges for legal aid. This Committee ruled that such fund raising would be prohibited because a judge engaging in direct fund raising for legal aid "would have threatened the aura of impartiality that is essential to a fair judiciary."

Finally, this Committee has also determined that a chief judge may not ethically send a letter to lawyers within the circuit soliciting them to join legal aid organizations to perform pro bono work or to pay an assessment in lieu of pro bono work. See Fla. JEAC Op. 00-06. Focusing upon the fund raising aspect of the inquiry, the Committee opined that a judge violates the Code of Judicial Conduct by authoring a letter that would "obviously be used to solicit membership and to solicit funds." Considering the analysis followed by this Committee in opinions 00-06 and 97-6, it is quite clear that a judge should not engage in any sort of fundraising on behalf of legal aid. Further, considering the analysis of Committee Opinion 86-16, a judge should not serve on the board of the Legal Aid Society unless the judge can satisfy the various conditions noted in that opinion.

REFERENCES

Section 106.141(4)(a), Florida Statutes (1999).

Canons 4D, 5, 5B(1), 5C(3).

Opinions 74-17, 86-16, 97-6, 00-06.

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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, 698 So.2d 834 (Fla. 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 Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850

Participating Members:
Honorable Charles J. Kahn, Jr.
Honorable Lisa D. Kahn
Honorable Phyllis D. Kotey
Honorable David Levy
Honorable Richard R. Townsend
Honorable C. McFerrin Smith III
Honorable Scott J. Silverman
Honorable Jeffrey D. Swartz
Honorable Emerson Thompson
Marjorie Gadarian Graham

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)