FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-22
Date of Issue: August 29, 2006

ISSUES

May a judge accept pro rata reimbursement from litigants who agree to pay for expenses incurred while presiding over depositions conducted in a foreign country?

ANSWER: No.

FACTS

A circuit court judge seeks advice concerning the payment of expenses incurred in presiding over depositions conducted in a foreign country.  All parties agreed to pay the Inquiring Judge’s expenses pro rata in hopes of a timely resolution of complex litigation.

DISCUSSION

     A majority of the Committee members agree that provisions of the Code of Judicial Conduct will be violated by the proposed conduct presented herein.  However, Committee members differ as to which specific Canons will be violated.  Nonetheless, the majority unanimously agree that there are numerous predictable evils that may occur by the payment of judicial expenses by the parties, albeit pro rata.  Therefore, as a general consensus, the suggested activity, reasonably, gives the appearance of impropriety and is discouraged.

     Nine Committee Members believe Canons 1 and 2 are implicated.  One Committee Member believes only Canon 1 is implicated.

     Canon 1 requires a judge to maintain high standards of conduct so that the integrity of the judiciary is preserved.  Even under the strictest interpretation, the facts presented by the Inquiring Judge could predictably run afoul of the standards of conduct expected from the judiciary.

     Canon 2A states that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  The conduct proposed by the Inquiring Judge raises the specter of public misperception about the factors that determine priority on a judge’s calendar, misperception that could erode public confidence in the integrity and impartiality of the judiciary.  Other litigants might feel that a judge committed to the impartial and efficient discharge of his or her duties would “stay home” to adjudicate their cases, rather than going abroad to oversee depositions, a function that could be delegated to a special master, or, for that matter, be accomplished personally by closed circuit television or even telephonically. 

     One Committee Member also  believes that Canon 3B may be violated by the Inquiring Judge’s absence from his own jurisdiction while on duty.  Canon 3B(1)  provides that a judge “shall hear and decide matters assigned to the judge except those in which disqualification is required.”  Canon 3B(8) requires a judge to “dispose of all judicial matters promptly, efficiently and fairly.”  The commentary to the latter Canon is also instructive, explaining that, “[p]rompt disposition of the court’s business requires a judge to devote adequate time to judicial duties….”  Taken together, these ethical standards impose a duty on a judge to be readily available in his or her own court to promptly dispose of all the court’s business without relying on other judges to handle the cases that are routinely filed in the court. Further, emergency and urgent matters may be presented to the court during any or all of the days the court is open for business each week and the assigned judge must be available to address them within a reasonable time, except for ordinary vacation and sick time.

     Two Committee Members furthermore believe pro rata “reimbursement” for the expenses contemplated may teeter on the fine line of a “favor” or gift in contravention to Canon 5D(5), if the accommodations provided for are too lavish.

     In addition, these same two  Committee Members believe that acceptance of reimbursement by litigants and/or their attorneys may violate Canon 6A. Under Canon 6A, a judge may receive compensation or reimbursement of expenses for the quasi-judicial and extrajudicial activities permitted by the Code, if the sources of these payments  do not give the appearance of influencing the judge in the performance of judicial duties or otherwise give the appearance of impropriety. These Committee Members opine that litigants and their attorneys in other cases may feel prejudiced when the Inquiring Judge has previously received financial reimbursement by opposing attorneys for “expenses,” such as, hotels, travel, and meals, incurred while the Judge presided in another case. The conduct would be subject to questions regarding what were reasonable and necessary expenses and what were extravagant expenses. 
 
    Two Committee Members opine that the facts presented by the Inquiring Judge appear to be issues of law that do not directly violate the Code.

REFERENCES

Florida Code of Judicial Conduct, Canons 1, 2,  2A, 3B, 3B(1), 3B(8), 5D(5), 6A and Commentary to 3B(8).

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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 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 Robert T. Benton, II, Chair, Judicial Ethics Advisory Committee, 301  S. MLK Jr. Blvd. Tallahassee, FL 32399.

Participating Members:
Judge Robert T. Benton, II, Judge Terry Michael Jones, Judge Lisa Davidson, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Leslie B. Rothenberg,  Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy L. Vaccaro, Patricia Lowry, Esquire, and Marjorie Gadarian Graham, 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
Inquiring Judge (Name of inquiring judge deleted from this copy)