FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-04
Date of Issue: February 9, 2005

ISSUES

May a circuit judge provide a letter to the Department of Elderly Affairs pursuant to §744.1085(8)(b), Florida Statutes, indicating that a guardian has demonstrated competency as a professional guardian, so that the guardian may seek waiver of the examination requirement demonstrating competency to act as a professional guardian?

ANSWER: Yes.

FACTS

The inquiring judge has been asked to provide a letter to the Department of Elderly Affairs indicating that a professional guardian who has appeared before the judge for over one year is competent as a legal guardian. The letter was requested by a guardian seeking waiver of an examination requirement demonstrating competency as a professional guardian pursuant to §744.1085(6)(b), Florida Statutes. This statute requires each professional guardian to demonstrate competency to act as a professional guardian by taking an examination approved by the Department of Elderly Affairs. This examination may be waived by the Department of Elderly Affairs if the professional guardian can provide: “(a) proof that the guardian has actively acted as a professional guardian for five years or more; and (b) a letter from a circuit judge before whom the professional guardian practiced at least one year which states that the professional guardian had demonstrated to the Court competency as a professional guardian.” Fla. Stat. §744.1085(8)(b).

DISCUSSION

Canon 2B of the Code of Judicial Conduct warns that a judge should not lend the prestige of judicial office for the advancement of the private interests of others. Nevertheless, the commentary under Canon 2B states that: “ a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation.” The commentary further states that judges may participate in the process of judicial selection by responding to inquiries from Judicial Nominating Committees concerning the qualifications of individuals being considered for judgeship.

In the past we have stated that judges may write letters of recommendation on behalf of others based on the judge’s actual knowledge and personal observations of the individual’s qualifications. Fla. JEAC Op. 95-39; Fla. JEAC Op. 77-10; Fla. JEAC Op. 75-30. We have written that upon request, a judge may communicate in writing with a Judicial Nominating Committee regarding a judicial candidate’s qualifications based on the judge’s personal observations concerning the applicant. Fla. JEAC Op. 95-24. We have repeatedly said that such recommendations must be succinct, factually based and related to the judge’s actual observations concerning the applicant. Id; Fla. JEAC Op. 89-15. In Fla. JEAC Op. 88-01 we commented that it was permissible for a judge to ethically communicate with the Florida Governor concerning a person’s nomination for judicial office, provided that the communication was factual, well-balanced and based on personal knowledge. These prior opinions support our position that it is permissible for a judge to write a letter to the Department of Elderly Affairs acknowledging that a professional guardian has demonstrated competency as a guardian provided that the information is succinct, factually based and made from personal knowledge.

In conclusion, this Committee finds that the inquiring judge may provide the Department of Elderly Affairs with a letter setting forth the judge’s succinct factual observations regarding the guardian’s competency as a professional guardian pursuant to §744.1085(8), Florida Statutes.

One member of the Committee dissents, suggesting that the contemplated letter of reference promotes the private business interests of the guardian, demonstrates a bias on behalf of a litigant who may appear before the judge in other cases, and could create disclosure concerns. The member draws a distinction between letters for lawyers who are “officers of the court” and guardians, who are litigants. Finally, the member fears the Committee may be creating a “slippery slope” that could lead to approval of letters of endorsement for other professionals that appear before the Court.

REFERENCES

Fla. Stat. §744.1085(6)

Fla. Stat. §744.1085(8)(b)

Fla. Code Jud. Conduct, Canon 2B

Fla. JEAC Op. 75-30, 77-10, 88-01, 89-15, 95-24, and 95-39

_____________

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 Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Melanie May, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, and Ervin Gonzalez, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)