FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2008-24
Date of Issue: December 3, 2008

ISSUE

Whether the inquiring judge may permit an elder justice program, established by the court, to provide to the public a list of attorneys who have indicated their availability to represent laypersons who serve as guardians in guardianship proceedings.

ANSWER: Yes.

FACTS

The circuit in which the inquiring judge sits has established a program to assist persons aged 60 or older who are involved in the court system.  The program seeks to remove barriers and enhance the linkages between senior citizens and the court system.  The employees of the program are court employees, but are not identified to the public as associated with a particular judge in the manner that a judge’s judicial assistant would be identified.  This program maintains a list of attorneys who have indicated their willingness to represent laypersons who are appointed as guardians in guardianship matters pending before the court.  Any member of The Florida Bar may request to be listed, and no screening of the attorneys is conducted by either the program or by the inquiring judge.

DISCUSSION

Canons 2A and 2B are considered in responding to the inquiry.  Canon 2A provides that judges should act in a manner that “promotes public confidence in the integrity and impartiality of the judiciary.”  Canon 2B provides that a judge may not “lend the prestige of judicial office to advance the private interests of the judge or others… .”

If a judge were to recommend a lawyer to a member of the public, such an action would not promote public confidence because it might cause the member of the public to believe that the lawyer who was recommended by the judge would receive favorable treatment by the judge in litigation, and would thus violate Canon 2B.  Inasmuch as the lawyer who was recommended would be compensated for the representation, Canon 2B would also be violated because the judge would be advancing the private interest of the lawyer being recommended.

Based on the facts posed by the inquiring judge, however, neither of these canons would be violated.  First, although the program was created by the court, and the employees of the program are court employees, it is not identified to the public as being affiliated with a judge in the manner that a judge’s judicial assistant is identified.  Therefore, there is no danger that an attorney’s name being listed will be seen by the public as a recommendation by the inquiring judge, or by any other judge.  Also,  inasmuch as the list is open to any attorney requesting to be included, it is similar to a lawyer referral service program.  Such programs are  designed to facilitate the public’s access to counsel and do not constitute a recommendation of any particular lawyer. 

Although this Committee has no previous opinions on this subject, the Texas Committee on Judicial Ethics has opined, in their Judicial Ethics Opinion 203 (1996) that it is appropriate for a judge to permit brochures to be distributed in a courtroom and other public areas of the courthouse announcing the availability of a bar-sponsored lawyer referral service which is open to all lawyers.

Our counterparts in Texas believed that the judge’s permitting the distribution of the brochures did not promote any individual lawyer but instead improve the administration of justice by promoting access to counsel, as permitted by Canon 4B. 

We agree with this analysis and apply it to the question posed by inquiring judge, even though the program is created by the court and not by the bar. 

We assume that the list of lawyers distributed by the program will disclose that any lawyer, may, upon request, be placed on the list, and that the program does not recommend the lawyers on the list or vouch for their competency.

REFERENCES

Fla. Code of Jud. Conduct, Canons 2A, 2B, and 4B.

_____________

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: Judge C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 101 N. Alabama Avenue, Suite 437, Deland, FL 32724.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


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)