FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2013-12
Date of Issue: May 16, 2013

ISSUES

May a general magistrate accept and utilize a “government rate” discount applicable to all attorneys employed by the government for tickets to the local legal aid organization’s annual gala?

ANSWER: Yes, if the general magistrate’s conduct does not appear to a reasonable person to cast reasonable doubt on the general magistrate’s capacity to act impartially as a general magistrate.

FACTS

The inquiring general magistrate writes that the local legal aid organization is having its annual gala.  The charge for the gala is $125 per person, of which $98 is a donation to the organization and the rest covers the cost of the event.  In order not to exclude some government attorneys, the organization proposes a “government rate” to apply to all attorneys employed by the government, including members of the judiciary, and, presumably, general magistrates.  That reduced rate would be $53 per person, of which $20 is a donation to the organization.  The inquiring general magistrate asks about the propriety for a general magistrate to accept the discount and utilize a “government rate” to the legal aid organization’s gala.

 

DISCUSSION

When used in the Florida Code of Judicial Conduct, the term “judge” means Article V, Florida Constitution judges and, where applicable, those persons performing judicial functions under the direction or supervision of an Article V judge.  “Definitions,” Fla. Code of Jud. Conduct.  The un-numbered section of the Code of Judicial Conduct entitled “Application of the Code of Judicial Conduct” provides, inter alia, that anyone who performs judicial functions, including a general or special magistrate, shall comply with Canons 1, 2A, and 3, and such other provisions of the Code that might reasonably be applicable.  Therefore, these Code sections apply to the inquiring general magistrate.

As an initial matter, the committee notes that the legal aid organization appears to have a higher event cost for the government-employed attorneys than for others purchasing tickets.  The general admission price of $125 less the donation of $98 means the event cost is $27 per person for the general public.  However, the “government rate” of $53 less the donation of $20 means the event cost for government-employed attorneys and judges is $33 per person.  Of course, the admission price for non-government attorneys is higher, because of the increased donation amount.  Nevertheless, the committee will address the propriety of the discount to the overall per person ticket price in recognition that it appears to constitute a benefit to members of the judiciary – and select others, including general magistrates – not available to the general public.   

Canon 2 of the Code of Judicial Conduct requires judges to avoid impropriety and the appearance of impropriety in all of the judge’s activities.  Canon 2A provides, “A judge shall … act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  The Commentary to Canon 2A provides:

A judge must expect to be the subject of constant public scrutiny.  A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

*   *   *

The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.

Canon 2B states, “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 2B’s Commentary provides:

Judges should distinguish between proper and improper use of the prestige of office in all of their activities.  For example, it would be improper for a judge to allude to his or her judgeship to gain a personal advantage such as deferential treatment when stopped by a police officer for a traffic offense.

Canons 5D(5)(a) and (h) provide:

(5)   A judge shall not accept, and shall urge members of a judge’s family residing in the judge’s household not to accept, a gift, bequest, favor or loan from anyone except for:

(a)   … an invitation to a judge and the judge’s spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice;

*   *   *

(h)   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; and, if its value, or the aggregate value in a calendar year of such gifts, bequests, favor, or loans from a single source, exceeds $100.00, the judge reports it in the same manner as the judge reports gifts under Section 6B(2).

In Fla. JEAC Op. 06-06, this committee advised that judges may attend an annual holiday party hosted by the guardian ad litem program honoring its volunteers, where all judges, along with Department of Children and Families attorneys, private attorneys who handle family law matters, attorneys who represent parents in termination of parental rights cases, and court administrative personnel, are invited.  Although not explicitly stated in the opinion, it was implied that the judge invitees were guests of the guardian ad litem program and would not be expected to pay to attend the event.  The committee observed:

The Code of Judicial Conduct permits and encourages judges to attend functions devoted to the improvement of the law, the legal system, or the administration of justice.  JEAC Op. 00-20.  See also JEAC Op. 00-14 (Judges may attend functions, including luncheons, annual dances, and judicial receptions on complimentary invitations, of aligned bar associations, such as the Dade County Trial Lawyers Association or the Florida Defense Lawyers Association, because these are functions devoted to the improvement of the law, the legal system, or the administration of justice); JEAC Op. 84-04 (The meetings are law related and are an appropriate setting for contact between members of the Bar and the Bench who must work together for the improvement of the legal system).

Canon 4 affirmatively encourages judges to engage in activities to improve the law, the legal system and the administration of justice.  However, in so doing, Canon 4A reminds the judge that:

A.    A judge shall conduct all of the judge’s quasi-judicial activities so that they do not:
(1)   cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2)   undermine the judge’s independence, integrity, or impartiality;
(3)   demean the judicial office; 
(4)   interfere with the proper performance of judicial duties;
(5)   lead to frequent disqualification of the judge ….

Canon 4D(2)(b) expressly permits the judge to appear or speak at 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 fund-raising 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)’s Commentary states, “However, judges may not participate in or allow their titles to be used in connection with fund-raising activities on behalf of an organization engaging in advocacy if such participation would cast doubt on the judge’s capacity to act impartially as a judge.”

In any event, the conduct permitted in Canon 4 is limited by, and subject to, all other requirements of the Code.  Canon 4B’s Commentary notes that the phrase “subject to the requirements of this Code” is included to remind judges that the use of the permissive language, in various sections of the Code, does not relieve a judge from the other requirements of the Code which apply to the specific conduct.

As we have noted many times, while Canon 4 permits and encourages judges to engage in quasi-judicial activities designed to improve the legal system and the administration of justice, it also contains admonitions regarding the manner in which a judge engages in a quasi-judicial activity.  In particular, the inquiring general magistrate should exercise great care so that the magistrate’s conduct does not appear to a reasonable person to cast reasonable doubt on the magistrate’s capacity to act impartially as a magistrate.  It is difficult to define with specificity the type of conduct which may appear to a reasonable person to cast reasonable doubt on the magistrate’s capacity to act impartially in this context.

While the committee concludes that the mere acceptance and utilization of a “government rate” discount applicable to all attorneys employed by the government for tickets to the local legal aid organization’s annual gala does not violate the Code, the general magistrate should be sensitive to the likelihood that the legal aid organization will be representing litigants before the magistrate and that any conduct or comments in or out of court which would tend to indicate the magistrate is strongly supportive of the organization or its mission may tend to cause a reasonable person appearing in opposition to a legal-aid-represented litigant to believe that he or she cannot receive a fair trial before the magistrate or that the magistrate cannot be impartial.  As an example, prohibited conduct would exist if it appears to a reasonable person that the general magistrate intends to give favorable treatment to persons represented by the legal aid organization.  The committee counsels the inquiring general magistrate to act cautiously in this regard, as well as with respect to any other portion of the Code which this activity may implicate.

    

 

REFERENCES

Fla. Code Jud. Conduct, “Definitions”, Application of the Code of Judicial Conduct, Canons 2, 2A, 2B, 4, 4A(1)-(5), 4B, 4D(2)(b), 5D(5)(a) & (h), & Commentary to Canons 2A, 2B, 4B and 4D(2).

Fla. JEAC Ops. 06-06, 00-20, 00-14, & 84-04.

_____________


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 Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The 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 the Committee Chair: Judge Jonathan D. Gerber, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michelle Morley, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator