FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-03
Date of Issue: March 19, 2010

ISSUE

Whether a judge can hold the offices of Vice-President and  President of a local chapter of the American Board of Trial Advocacy.

ANSWER: Yes.

FACTS

The inquiring judge, a member of the American Board of Trial Advocacy (“ABOTA”),1 reports that a “local chapter has asked me to become the Vice-President of the local chapter for 2010-2011 and then President for 2011-2012.”  Contemplating agreeing to serve, the inquiring judge asks the JEAC’s advice on whether there is any reason under the canons not to accept, and states that “[t]he position involves no fundraising.  All operations are financed through dues paid by members.  Activities include social gatherings by members and occasional presentations to the membership on the jury system.”

DISCUSSION

Like the inquiring judge, we begin from the premise that merely being a member of ABOTA violates no canon.  A majority of a predecessor committee opined “that membership in ABOTA is an activity allowed by Canon 4D,” saying “ABOTA is dedicated to the improvement of the law, the legal system, and the administration of justice.”  Fla. JEAC Op. 95-46 Comm. on Stds. of Conduct Gov’g Judges.  See also Fla. JEAC Op. 03-02 (reaffirming propriety of judge’s membership in ABOTA); Fla. JEAC Op. 80-08 Comm. on Stds. of Conduct Gov’g Judges (approving a judge’s membership in the American Academy of Matrimonial Lawyers).

We also take as a given that the inquiring judge was asked to serve, rather than actively seeking the office.  On a cautionary note, we observe that a predecessor committee unanimously opined “that a judge could not run for the president of a bar association.”  Fla. JEAC Op. 79-15 Comm. on Stds. of Conduct Gov’g Judges.  The Committee reasoned “that the judge places himself in a position where he must ask for votes or support from lawyers.”  Id.  “The question will inevitabl[y] be raised whether the judge is exerting pressures on lawyers who must litigate before him.  This gives at least the appearance of impropriety.”  Id.

The distinct question of whether a recently appointed judge should retain the judge’s position as president of a local bar association has also arisen.  One concern voiced there, not present here, had to do with legal aid.  In that situation:

The Committee was unanimous that it is improper for a judge to also be the president of a bar association.  One of our members pointed out that the president of a local bar association is called on to act as spokesman for its membership on matters [a]ffecting the local bar.  It was mentioned that that member’s local bar had cens[u]red . . . a sheriff for his conduct in the handling of a prisoner, and had passed resolutions endorsing candidates who were seeking state wide or regional judicial offices.  The president of a bar appoints the Legal Aid Committees.  Some of our prior opinions have prohibited a judge from being on the Board of Directors of the Legal Aid Society, and that some of those same problems will arise with respect to a judge/president vis-a-vis the legal aid society.  While the president of the bar may not have a great deal of control over these matters, his name is in the forefront of public attention.  It would certainly appear that the judge is doing all these things.

That member goes on to say: “I believe that an effective bar association should be free to involve itself in the important issues which may involve its membership on appropriate occasions.  It seems unlikely that a judge serving as president, would be equally as free to speak for the membership and be effective, as would an attorney who is not subject to the canons of judicial ethics.” 

Op. 79-16 Comm. on Stds. of Conduct Gov’g Judges.  The present JEAC does not view the effectiveness of ABOTA as a question within its purview, but does caution the inquiring judge, as an officer of ABOTA or otherwise, against taking public stands on questions likely to arise before the judge, as to which the parties are entitled to be heard before decision. See Canon 4A(1) and (5).

Merely holding office in a local chapter of ABOTA would present no problem under the Code of Judicial Conduct so long as the requirements of Canon 4 and the remainder of the Code are observed.

REFERENCES

Fla. Code Jud. Conduct, Canons 4A(1), 4A(5), 4D.

Fla. JEAC Op. 79-15, 79-16, 80-08, 95-46, 03-02

_____________

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 Jonathan D. Gerber, Judge T. Michael Jones, 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)

1. The inquiring judge informs us that ABOTA “is a national organization of plaintiff and defense lawyers, as well as judges, whose mission is to support the continuity and health of the jury system in the United States.  Membership is an honor, and has pre-requisite numbers of jury trials as well as character and fitness requirements.”