FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2003-03
Date of Issue: April 15, 2003

ISSUES

May a judge participate in a law firm's litigation program by presiding over mock trials at a firm retreat to be held at a local resort?

ANSWER: No.

FACTS

Several judges within a circuit have been invited to participate in a law firm's litigation training retreat, the purpose of which is to advance and improve the skills of trial lawyers within that firm. The judge would be an "honored guest" at the firm's retreat at an upscale resort within the circuit. The law firm is a large national law firm with a local office in the circuit in which the retreat is to be held. The judge would preside over a one day mock trial and critique and give instruction to the firm's associates in an effort to improve their trial techniques. The law firm has offered to pay for the room and meals of the participating judges and has encouraged the judges to take advantage of the offer to give the firm's younger colleagues an opportunity to meet the judges in an informal setting.

DISCUSSION

The recently revised Canon 4(B), Code of Judicial Conduct, provides as follows:

Canon 4. A Judge is Encouraged to Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice.

4(B). A judge is encouraged to speak, write, lecture, teach, and participate in other quasi-judicial activities concerning the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch within the system of government, subject to the requirements of this Code.

This Canon has been found to be justification for a Supreme Court Justice to teach in a law school (JEAC Op. 75-28), for a judge to be a lecturer at a legal seminar sponsored by a private corporation (JEAC Op. 92-45), for sponsoring and organizing seminars for attorneys (JEAC Op. 92-29), and teaching church law at a religious university (JEAC Op. 97-26). This Committee has also found that a judge may participate in a legal seminar sponsored by a private law firm in conjunction with the Academy of Florida Trial Lawyers. (JEAC Op. 87-3).

The facts set forth in this inquiry are distinguishable from the facts in the above referenced opinions. Specifically, the judge's participation in the law firm retreat would be solely for the benefit of the sponsoring law firm and the requesting law firm has an office in the circuit of the inquiring judge.

The commentary to Canon 4(B) states that the Canon was recently clarified in order to encourage judges to engage in activities to improve the law, legal system, and administration of justice. The commentary suggests that because judges are specifically learned in the law, they are in a unique position to contribute to these endeavors.

Although judges are encouraged to speak, write, lecture, teach, and participate in quasi-judicial activities concerning the law, the Canon clearly restricts such activity by the qualifying language "subject to the requirements of this Code." The commentary to Canon 4(B) states as follows:

The phrase "subject to the requirements of this Code" is included to remind judges that the use of permissive language in various Sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct. A judge invited as an honored guest of a law firm at that law firm's educational retreat to preside over mock trials would violate the spirit and intent of several Canons.

Canon 4(A), Code of Judicial Conduct, provides that a judge shall conduct all of the judge's quasi-judicial activities so they do not cast reasonable doubt on the judge's capacity to act impartially as a judge. Members of the sponsoring law firm practice law in the circuit of the inquiring judge. Undoubtedly, a litigant would be uncomfortable appearing in front of a judge who had recently been an honored guest at the opposing law firm's educational retreat. This creates a reasonable doubt as to the judge's capacity to act impartially.

Canon 6, Code of Judicial Conduct, permits a judge to receive compensation and reimbursement of expenses for quasi-judicial and extra judicial activities permitted by the Code, "if the source of such payments does not give the appearance of influencing the judge in the performance of judicial duties, or otherwise give the appearance of impropriety..." Entertaining a judge at an exclusive resort by a private law firm, whose clients may appear in front of that judge, has an appearance of impropriety. Furthermore, Canon 5, Code of Judicial Conduct, precludes a judge from accepting any gift or favor from anyone who has come or is likely to come and whose interests have come or are likely to come before the judge.

Finally, Canon 2, Code of Judicial Conduct, establishes a high standard of integrity for the judges of this State. "A judge ... shall at all times act in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The Canon further states that "a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge permit others to convey the impression that they are in a special position to influence the judge." Judges must not only avoid impropriety, but must avoid the appearance of impropriety.

For the reasons expressed herein, a judge should not accept an invitation to be a participant in an educational seminar at the retreat of a private national law firm, which is exclusively for the members of that firm and which firm has a branch office within the judge's circuit.

REFERENCES

Canons 2, 4, 5, and 6, Code of Judicial Conduct.

JEAC Op. 75-28

JEAC Op. 87-3

JEAC Op. 92-29

JEAC Op. 92-45

JEAC Op. 97-26

_____________

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 Jeffrey D. Swartz, Chairman, Judicial Ethics Advisory Committee, Miami Beach District Courthouse, 1130 Washington Avenue, Miami Beach, FL 33139.

Participating Members:
JJudge Jeffrey D. Swartz, Judge McFerrin Smith, III, Judge Richard R. Townsend, Judge Charles J. Kahn, Jr., Judge Lisa Davidson, Judge Emerson Thompson, Judge Scott J. Silverman, Judge John G. Fletcher, Ervin Gonzalez, Esq. and Marjorie Gadarian Graham, Esq.


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)