FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-09
Date of Issue: March 28, 2006

ISSUE

May a judge, who was formerly a staff attorney with a legal services organization, submit a congratulatory message to be included in an advertisement for an upcoming commemorative event?

ANSWER: No.

FACTS

At one time the inquiring judge served as a staff attorney and board member for a local legal services organization. The judge is presently assigned to a docket that does not involve appearances by legal services attorneys. The organization will soon host an important anniversary luncheon and plans to run a public announcement. General admission tickets, sufficient only to cover the cost of the meal, will be sold for the luncheon, but the organization hopes that some parties will also sponsor tables at a higher cost. The public announcement will feature photographs of former staffers such as the judge plus a written statement congratulating the organization for its many years of service to the community and praising its attorneys for their everyday work “to help the victims of injustice.” The message will conclude with the words “I am proud to be an alumnus of Legal Services.” 1 Accordingly, the judge requests an advisory opinion as to the propriety of being included in the advertisement.

DISCUSSION

The inquiring judge expresses concern that participation might run afoul of Canon 2(B) and its proscription of lending judicial prestige to private enterprise. An exception to this general rule can be found in Canon 4(D), which permits — even encourages— judges “to serve as a member, officer, director, trustee, or non-legal advisor of an organization … devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice.” However, this Committee has previously opined that Canon 4(D) does not extend to legal services groups even though they provide free or low cost representation to the disadvantaged.  Instead, such groups are still considered “law firms.” So held a majority of the Committee in Florida JEAC Opinion 97-06. This is so even though the Commentary to Canon 4(B) allows judges to encourage individual attorneys or firms to perform pro bono services. 2

The judge’s concerns about Canon 2(B) are well taken. Any adversarial proceeding in which legal services attorneys appear will naturally have another party in opposition, often one also represented by counsel. Perceptions of possible favoritism could arise where it is known the judge (however well-intentioned) has publicly drummed up support for the legal services group. The particular wording of the advertisement in the present case, to the effect legal services attorneys are daily fighting injustice, only risks strengthening such a perception.    

Even if the Committee were to overrule the precedent set in Fla. JEAC Op. 97-06, Canon 4(D) is not without limitations. If it is likely that an organization will be engaged in proceedings that come before the judge or will be engaged in frequent litigation before the court where the judge sits or any lower courts, the judge must curtail or severely restrict involvement. Canons 4(D)(1)(a) and (b). The inquiring judge is not personally assigned to a division wherein legal services attorneys would be encountered, but the Committee is given no reason to think their attorneys would never appear in any other division of the same court. The answer to that question would depend on what types of cases this particular organization actually handles. 

          The difference between holding membership or a position of trust and mere inclusion in a congratulatory message from alumni is, here, one without a legal difference. In reaching this conclusion the Committee has evaluated the apparent purpose of the anniversary function and its accompanying advertisement. The judge suggests that the luncheon is not a fundraiser because the organization only “hope[s] to break even.” At-cost events are not necessarily viewed as fundraisers, though a judge always has “a duty to make an in-depth inquiry into the fund raising aspect of the activity.”  Fla. JEAC Op. 05-09. It is the hoped-for sponsorship of tables that leads this Committee to conclude this event is a fundraiser, if not an overly ambitious one. Currently Canons 4(D)(2) and 5(C)(3)(b) prohibit active judicial participation in such undertakings regardless of the worthiness of the cause. 3

          The Committee concludes that the inquiring judge may not participate in a printed congratulatory advertisement for a legal services organization under circumstances where it appears the judge endorses that organization. Further, because the function being advertised will serve at least partly as a fundraiser, the judge could not be included in the ad even if the organization were one within the purview of Canon 4(D).

REFERENCES

Canon 2(B)
Canon 4(D)
Canon 4(D)(1)(a)
Canon 4(D)(1)(b)
Canon 4(D)(2)
Canon 5(C)(3)(b)

Fla. JEAC Op. 06-06
Fla. JEAC Op. 05-14
Fla. JEAC Op. 05-09
Fla. JEAC Op. 03-15
Fla. JEAC Op. 00-25
Fla. JEAC Op. 97-06
Fla. JEAC Op. 86-16
Fla. JEAC Op. 74-17

_____________

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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Marjorie Gadarian Graham, Esq., Chair, Judicial Ethics Advisory Committee, 11211 Prosperity Farms Road, Oakpark, Suite D129, Palm Beach Gardens, Florida 33410.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Ervin Gonzalez, Esquire, Marjorie Gadarian Graham, Esquire, Judge Michael Raiden, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


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

1. The organization itself is not subject to the same limitations as the inquiring judge and could in no instance be barred from pointing to the judge’s past association as a historical fact.  In the present case, however, the wording of the message, as provided by the judge, refers to the judge in the first person (“I am proud …”) and thus unambiguously connotes the judge’s approval. 

2. Fla. JEAC Op. 97-06 was reaffirmed in Fla. JEAC Op. 00-25.  Fla. JEAC Op. 74-17 similarly adopts a broad proscription of judicial involvement with legal services organizations, in this instance by service as a director.  Only the slightest recession from this opinion occurred in Fla. JEAC Op. 86-16, which stopped short of recommending an absolute proscription but cautioned about “[t]he changing nature of some organizations and their relationship to the law.”  Op. 86-16 makes a careful distinction  between a legal aid organization which only performs the administrative task of assigning pro bono work to private attorneys and one which employs its own staff counsel.  The latter type is a law firm.
   Fla. JEAC Op. 06-06 should not be read as having reached a different conclusion.  Among the questions presented were whether judges could attend a holiday party sponsored by the local guardian ad litem program, and if so whether such a party amounted to an impermissible “gift” from an advocacy group.  The Committeeconcluded that certain settings are “appropriate … for contact between members of the Bar and Bench who must work together for the improvement of the legal system.”  Despite a reference to the commentary accompanying Canon 4(B), the distinction between applauding pro bono work and supporting a staffed legal group which happens to do creditable work remains a valid one.

3. A recent review of fundraising dos and don’ts may be found in Fla. JEAC Op. 05-14, including an acknowledgment that “the issue of judges’ participation on community affairs is one which seems to be evolving over time.”  In particular there are proposals afoot to loosen restrictions on judicial fundraising for the type of organizations referenced in Canon 4(D).  These suggestions have not been approved by the Florida Supreme Court and, given the present wording of Canons, the inquiring judge should not be featured in an advertisement nor otherwise participate in a charitable event except in a discreet manner.    Op. 05-14 also provides guidance about discretion and the danger of judges drawing attention to themselves. 
   Even a permissible solicitation, such as one made to a judge of equal or superior rank, turns into “lending prestige” if the judge’s efforts are advertised by the intended beneficiary.   Fla. JEAC Op. 03-15.  The Committee repeats that Fla. JEAC Op. 97-06 would not allow solicitation even among judges for a legal services organization.