FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2009-15
Date of Issue: August 31, 2009

ISSUE

Whether the inquiring judge may permit a local non-profit legal services corporation, in their fundraising campaign, to use a video interview of this judge,  filmed while in private practice, wherein he exhorts lawyers, law firms and corporations to partner with the legal services corporation.

ANSWER: No.

FACTS

The inquiring judge, for many years while a practicing attorney, had been involved with a non-profit legal aid services corporation, including being a member of the board of directors.  In 2006, while still in private practice with a law firm, the judge was interviewed on camera for the legal aid corporation anniversary celebration.  In the video, the judge is wearing a suit and the name appears in the caption of the image.  The legal services corporation now has asked the judge for permission to use this videotaped interview in which the caption has been changed to read “Judge (name)”. The inquiring judge has asked the Committee to consider whether it is appropriate to choose one of the following three options:

(a) request the legal services corporation not to use the excerpt of his interview;
(b) ask the legal services corporation to use a caption which identifies him not as a judge but as an attorney “while employed with” the named law firm; or
(c) allow the excerpt to be used as requested.

DISCUSSION

The Supreme Court of Florida, on May 22, 2008 amended the Code of Judicial Conduct to allow judges to participate “in certain fundraising activities, so long as participation in such activities is consistent with other provisions of the code.”  In re: AMENDMENTS TO THE CODE OF JUDICIAL CONDUCT-LIMITATIONS ON JUDGES’ PARTICIPATION IN FUND-RAISING ACTIVITIES, 983 So. 2d 550, 551-552 (Fla.2008). The Supreme Court amended Canon 4D(2) to permit a judge to “appear or speak at, receive an award or other recognition at, be featured on the program of, and permit the judge’s title to be used in conjunction with an event of [an organization devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice], but if the event serves a fundraising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice and the funds raised will be used for a law related purpose(s).” Canon 4D(2)(b).

A non-profit legal services corporation which provides legal services to indigent persons is a law-related organization under Canon 4D, as noted in the commentary to Canon 4D(1).  Judges would be allowed to participate in a number of different ways in the activities of legal services corporations, even if the event(s) serves as a fundraiser.  However, the Canons maintain the “prohibitions on direct solicitation of funds by judges”.  In re Amendments, id. at 551.

Canon 5C(3)(b)(i) provides that a judge “shall not personally or directly participate in the solicitation of funds,”  and 5C(3)(b)(iii) provides that a judge “shall not use or permit the use of the prestige of judicial office for fund-raising....”  Under this Canon, judges cannot solicit lawyers, law firms or other corporations to donate funds to the legal services corporations and they must not permit the use of the prestige of judicial office to do so.  Under Canon 5C(3)(b) “a judge must also make reasonable efforts to ensure that the judge’s staff, court officials and others subject to the judge’s direction and control do not solicit funds on the judge’s behalf for any purpose, charitable or otherwise.”  Commentary to Canon 5C(3)(b).

The interview excerpt, even if made while the judge was in private practice and while not wearing a robe, will be attributed to the person who currently occupies a judicial office.  Therefore, a majority of the Committee believes the inquiring judge must not grant permission for the use of the interview as requested, or otherwise.

In sum, the majority believes the statement made in the videotape impermissibly seeks the audience to contribute funds to the non-profit legal services corporation.  In their view, this would be a direct solicitation of funds by the inquiring judge or, at least, it would constitute the permitting of the use of the prestige of judicial office for fundraising.  The above-referenced Canons of Judicial Conduct prohibit this type of activity.

Two Committee members believe the presentation of the video excerpt does not constitute personal and direct solicitation by the judge, and, thus, the proposed conduct is not prohibited. Another member believes it is unclear from the facts whether or not this is personal and direct solicitation but emphasizes that, in any event, it is incumbent upon the inquiring judge to make this determination.

REFERENCES

In re: Amendments to the Code of Judicial Conduct – Limitations on Judges’ Participation in Fund-Raising Activities, 983 So. 2d 550, 551-552 (Fla. 2008)
Fla. Code Jud. Conduct, Canons 4D(1), 4D(2)(b), 5C(3)(b)(i), and 5C(3)(b)(iii)

_____________

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 a 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. See 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. See Id.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Judge T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

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 C. McFerrin Smith III, Judge Richard R. Townsend, 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)