FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2007-05
Date of Issue: March 20, 2007

ISSUES

May a judge who presides over drug court solicit or receive “incentive gifts” from lawyers or law firms for use as rewards to Drug Court program defendants/participants?

ANSWER: No.

FACTS

The inquiring judge presides over a court-sponsored diversionary program, commonly referred to as “Drug Court,” that provides for treatment of non-violent offenders with substance abuse problems by combining intensive client interaction and other integrated services in a therapeutic plan of recovery. As part of the judge’s Drug Court program, defendants/participants are rewarded with, among other things, material gifts such as sporting event tickets, movie passes and gift certificates. According to the inquiring judge, “These incentive gifts are usually procured by donations from members of the Drug Court team (treatment providers, therapists, and the judges themselves) or directly from a retail establishment.” The judge asks if the Code of Judicial Conduct prohibits the Drug Court program from accepting incentive gift donations from lawyers or law firms.

DISCUSSION

Canon 2A states, “A judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2B directs, “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”

Canon 5A(1) provides, “A judge shall conduct all of the judge’s extra-judicial activities so that they do not . . . cast reasonable doubt on the judge’s capacity to act impartially as a judge . . . .” Canon 5D(1)(a) mandates, “A judge shall not engage in financial and business dealings that . . . may reasonably be perceived to exploit the judge’s judicial position . . . .” The commentary to Canon 5D(1) states, “This rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification.”

Canon 3E(1) of the Florida Code of Judicial Conduct requires a judge to “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”  The Commentary to Canon 3E(1) observes that “[u]nder this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.”

Canon 5D(5)(h) provides, “A judge shall not accept . . . a gift, bequest, favor or loan from anyone except for [those identified in subsections (a) - (g)], or any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge . . . .”  The commentary to Canon 5D(5)(h) states that the section “prohibits judges from accepting gifts, favors, bequests or loans from lawyers or their firms if they have come or are likely to come before the judge; it also prohibits gifts, favors, bequests or loans from clients of lawyers or their firms when the clients’ interests have come or are likely to come before the judge.”

In Fla. JEAC Op. 00-08, a judge inquired as to the propriety of the judge or other court employees accepting gifts, including money and redeemable gift certificates, from lawyers, vendors, or other third parties. A majority of the Committee concluded the judge may not accept such gifts from lawyers or their firms if they have come or are likely to come before the judge and the judge is prohibited from accepting such gifts from clients of lawyers or their firms when the clients' interests have come or are likely to come before the judge, citing to subsections (5) and (5)(h) of Canon 5D. The Committee observed that, while a judge is required to have staff, court officials, and others subject to the judge’s direction and control observe the standards of fidelity and diligence that apply to the judge, the Code of Judicial Conduct does not directly preclude court employees from accepting money and redeemable gift certificates from lawyers, vendors, or other third parties. The Committee concluded that, nevertheless, the judge is ethically obligated to instruct court personnel to act in a manner consistent with the judge's ethical duties and obligations by directing them not to accept such donations.

The Supreme Court of Florida found the conduct of a judge violated Canon 5D(5)(h) and to be so egregious as to warrant a public reprimand where the judge had accepted free tickets to Florida Marlins baseball games from lawyers in a law firm whose members not only were likely to appear before him but actually were before him as defense counsel in at least two cases. See In re Luzzo, 756 So. 2d 76 (Fla. 2000). The court observed, “. . . canon 5D(5)(h) also prohibits a judge from accepting a gift of any value from a ‘person who has come or is likely to come’ before the judge. The commentary to canon 5D(5)(h) specifically provides that this canon ‘prohibits judges from accepting gifts, favors, bequests or loans from lawyers or their firms if they have come or are likely to come before the judge.’ The importance of this Canon was emphasized in a recent ethics advisory opinion. See Fla. Supreme Ct. Judicial Ethics Adv. Comm. Op. No. 2000-08, Judges and Court Employees Accepting Gifts from Lawyers, Vendors, and Other Third Parties (March 1, 2000). . . . Thus, Judge Luzzo's conduct comes squarely within Canon 5D(5)(h).” Id. at 78-79.

Although the Luzzo case dealt with a judge who accepted gifts from lawyers for his personal use, while the inquiring judge asks about gifts to be given Drug Court participants, the canons make no distinction regarding the purpose of the gift. The acceptance of gifts, for any purpose,  from lawyers or law firms who are likely to come before the judge may exploit the judge’s judicial position, provide grounds to question the judge’s impartiality, convey or permit others to convey the impression that they are in a special position to influence the judge and create a potential for disqualification.


Notwithstanding the laudable  purpose for which the inquiring judge seeks to acquire incentive gifts for the Drug Court participants, the Committee is of the opinion that the judge may not accept such donations from lawyers or law firms if they have come or are likely to come before the judge. Further, the judge is ethically obligated to instruct court personnel to act in a manner consistent with the judge’s ethical duties and obligations by directing them not to accept such donations. 

REFERENCES

Florida Case:  In re Luzzo, 756 So. 2d 76 (Fla. 2000).

Fla. Code Jud. Conduct: Canons 2A, 2B, 3E, 3E(1), 5A(1), 5D(1)(a), 5D(5)(h) and Commentary to Canon 3E(1), 5D(1) and 5D(5)(h).

Florida Judicial Ethics Advisory Committee Opinions: 00–08.

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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 T. Michael Jones, Judge Lisa Davidson, Judge Michael Raiden, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III,  Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy 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)