FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2013-19
Date of Issue: October 18, 2013

ISSUES

Must a judge, who is facing re-election, provide notice to parties when a member of the judge’s campaign committee is opposing counsel, in cases that are likely to be handled or disposed without formal court appearances?

ANSWER: Yes.

If so, may the judge use campaign literature to provide the necessary notice?

ANSWER: No.

May the judge utilize campaign funds to defray the cost of providing the necessary notice?

ANSWER: Yes.

FACTS

The inquiring judge is up for election in 2014.  In preparation for this the judge plans to establish a campaign committee that will include numerous attorneys from the judge’s circuit.  Cognizant of prior opinions from this committee, the judge plans to notify opposing counsel any time one of those attorneys is handling a matter before the judge.  However, part of the judge’s caseload includes matters that are typically resolved by magistrates or are uncontested.  The judge asks whether the same type of disclosure is required in these cases and, if so, how the notice should be provided.  Additionally, the judge wants to know whether the expense (such as postage) can or should be borne by the campaign.

DISCUSSION

The most thorough of our opinions on the subject of campaign-related disclosures is Fla. J. E. A. C. Op. 07-17.  The opinion arose in the context of a criminal division, where it is to be expected that attorneys will appear personally and thus the opportunity to make the necessary declaration is generally available without delay. However, the case law cited in that opinion makes it clear that its scope is not limited to criminal cases. Identifying and contacting lawyers who are opposing lawyer members of the judge’s campaign committee may be a bit more challenging in certain divisions of the court, but the effort nevertheless must be made. The manner in which the judge chooses to notify these attorneys should not involve any sort of campaign stationery or literature, as that could be perceived by the recipient as a veiled form of solicitation.  Because the notification must become a matter of record, it should be done using the judge’s official letterhead if the opportunity to provide notice in open court does not present itself. 

Decisional law provides no explicit guidance regarding the judge’s suggestion that campaign funds be used to defray the cost of widespread notification.  Canon 7C(1) forbids the use of such moneys “for the private benefit of the candidate.” See also § 106.1405, Fla. Stat. The intent of the notification requirement is to insure fairness for parties who may have an objection to the judge remaining assigned to a given case, not to advance the judge’s campaign.  Accordingly, there appears to be no direct prohibition against utilizing campaign funds for the expense incurred in the notification process.  However, it is not mandatory that the judge pay for the cost from this source.

Finally, we take the opportunity to remind the inquiring judge that while disclosure does not automatically entitle a party to seek disqualification of the judge, if the appearance of conflict does exist it extends to the entire firm and not the individual attorney who happens to sit on the campaign committee.  Thus it is recommended that the wording of any disclosures be sufficiently broad to account for this contingency. 

REFERENCES

Section 106.1405, Florida Statutes
Florida Code of Judicial Conduct, Canon 7C(1)
Florida Judicial Ethics Advisory Committee Opinion 07-17

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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 a judge or judicial candidate.

Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to 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 Judge Roberto Arias, Chair, Judicial Ethics Advisory Committee, Duval County Courthouse, 501 West Adams Street, Room 7180, Jacksonville, Florida 32202-4603.

Participating Members:
Judge Roberto Arias, Robert T. Benton, II, 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 Michael Raiden, Judge Richard R. Townsend, Judge Dorothy L. 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