FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2007-09
Date of Issue: May 7, 2007

ISSUES

May a judge participate in a panel discussion as part of a continuing legal education seminar sponsored by a private organization?

ANSWER: Yes, so long as the judge’s participation is educational in nature and does not endorse products or materials offered by that organization.

If so, must the organization be non-profit in nature?

ANSWER: No.

May the judge receive compensation for expenses and/or an honorarium for the judge’s participation in the seminar?

ANSWER: Yes, subject to the guidelines set forth in Canon 6.

May the judge permit the sponsoring organization to include the judge’s photo and/or biographical information when advertising the seminar?

ANSWER: Yes, so long as the advertising is done in a dignified manner and does not imply that the judge endorses any products or services provided by that organization.

FACTS

The inquiring judge is one of several who have been asked to serve on a discussion panel as part of a seminar entitled “What Civil Court Judges Want You To Know.”  The seminar, which is apparently intended to provide continuing legal education (CLE) credits for attorneys, will be conducted by a private (nongovernmental) organization (NGO), which the judge understands is non-profit in nature. 1  A fee will be required from anyone attending the seminar.  The NGO will offer each panelist an honorarium, the amount of which will be based on the number of attendees.  The NGO also plans to use the panelists’ photos and biographies in its promotional literature.  Based on these facts the inquiring judge poses several interrelated questions.

DISCUSSION

We begin our discussion with the threshold question whether participation in such seminars is acceptable per seThe facts underlying the present inquiry are quite similar to those in Fla. JEAC Op. 92-45.  There the seminar (a) was also sponsored by a private entity, (b) was conducted during normal work hours, and (c) entitled the judge to both expenses and an honorarium.  The Committee balanced two competing goals of the Code of Judicial Conduct, 2 one being Canon 4B (encouraging judges to be proactive on behalf of the legal system) and the other Canons 4A(3) and 5A(3) (discouraging extrajudicial activities that interfere with the proper performance of judicial duties), and a majority concluded that the proposed activity was permissible so long as the judge made sufficient arrangements to avoid compromising judicial obligations. 3  One member suggested the judge take a vacation day for the seminar, which is exactly what the inquiring judge plans to do. 4

Other opinions help flesh out these general guidelines, beginning with the issue of for-profit vs. non-profit.  While we concluded, in Fla. JEAC Op. 99-27, that a judge may not participate in a Bar professionalism seminar because the motivation for that seminar was to raise funds for Bar activities, our opinion was careful to distinguish between fundraising – never permissible for judges under Canons 4D(2)(a), 4D(2)(d), and 5C(3)(b) – and speaking at a “legitimate legal education seminar” even if the seminar was intended to produce income or profit for the sponsor.  See also Fla. JEAC Op. 06-17 (participation in panel discussion sponsored by MADD).  We reasoned that commercially sponsored legal education programs - legal and judicial education being something that should be encouraged - would likely cease to exist if they “were not able to operate on a sound financial basis.”  Fla. JEAC Op. 99-27.

As noted in the statement of facts, the judge will be offered an honorarium for participating in the seminar.  Canon 6A clearly allows reimbursement of expenses for extrajudicial activities otherwise permitted by the Code as well as additional compensation.  However, the compensation “shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity,” and reimbursement “shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge . . . . Any payment in excess of such an amount is compensation,” that is, income which must be reported pursuant to Canon 6B.  See Fla. JEAC Ops. 82-06 and 91-09.  Commendably, in the present case the inquiring judge, though not required to do so, is considering donating the honorarium, possibly to a local pro bono services organization.

The inquiring judge is concerned that acquiescing in placement of the judge’s picture and/or bio in advertisements might violate Canon 2B, which forbids judges from using the prestige of office to advance the private interests of themselves or others.  There is precedent supporting the judge’s position.  In Fla. JEAC Op. 87-03, the judge was participating in a seminar sponsored by a private law firm, the Academy of Florida Trial Lawyers, and the University of West Florida.  While the Committee felt this was permissible, 5 a substantial majority expressed the opinion that any reference to the firm in the advertisements would run afoul of Canon 2B.  This conclusion is consistent with the more recent Fla. JEAC Op. 03-03, regarding judges’ participation in a law firm’s “litigation training retreat,” held at a local “upscale resort” and featuring mock trials and critiques of the attorneys’ performances.  Such participation would risk not only “lending prestige” but also conveying an impression that the sponsoring law firm is in a position to exert special influence on the judge.  This caveat too is included in Canon 2B. 

However, we do not interpret either Canon 2B or Op. 87-03 as prohibiting the provider from featuring information about and/or a picture of the judge in its advertisement so long as (a) that information is presented in a tasteful and dignified manner and (b) states only that the judge will be a featured speaker and does not go farther to suggest the judge endorses the provider or any of its services or products.  As stated by the inquiring judge, “since it is ethical for judges to teach for private CLE providers, surely their names are listed by the educational institutes or providers for whom they teach?”  This seems to us no different from a publisher advertising the fact a law book was written by a judge.  See Fla. JEAC Op. 76-17 (but suggesting the ad be “tasteful”).  Although we have repeatedly spoken against judges engaging in conduct even indirectly construable as an endorsement for a product or service; see, e.g., Fla. JEAC Op. 06-14 (disallowing use of a judge’s interview in a documentary film linked to a specific, commercially marketed method of reading instruction); this Committee perceives a difference between a judge generally endorsing an NGO that is sponsoring a seminar and allowing the NGO to inform attendees who will be speaking at the event.

REFERENCES

Florida Constitution:  Art. V, § 13.

Florida Code of Judicial Conduct:  Canons 2B, 4A(3), 4B, 4D(2)(a), 4D(2)(d), 5A(3), 5C(3)(b), 6A, 6B.

Florida Judicial Ethics Advisory Committee Opinions: 06-17, 06-14, 03-03, 99-27, 92-45, 91-09, 87-03, 82-06, 76-17.

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

1. The judge has provided this Committee with some promotional materials supplied to the judge by the NGO.  From this we infer that the NGO is quite ambitious in its scope.  Nowhere is it specifically stated the NGO is a nonprofit.  However, as will be seen this Committee has never interpreted the Canons to require that the sponsors of such seminars eschew making a profit.

2. Some Code provisions that appear in early JEAC opinions have since been renumbered.  The Committee will cite the current Code provisions in this opinion.

3. See also Article V, § 13, Fla. Const. (judges must devote full time to their judicial duties).

4. Two members believed “the appearance that you are not a fulltime public servant” militated against accepting the proposal.

5. Ironically, a judge cannot belong to the Academy, due in part to its membership pledge that excludes significant participation in insurance defense work (therefore suggesting possible bias on the part of members).