FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-19
Date of Issue: June 25, 2019

ISSUES

May a judge accept a friend's offer of a free stay in a suite at a resort property, which suite has been provided to the friend by an attorneys' association holding a conference at the resort.

ANSWER: Yes.

FACTS

The inquiring judge and the judge's family have been offered the opportunity to join a friend, free of charge, for a stay at a popular resort. The friend is sufficiently close to the judge that Canon 3E of the Code of Judicial Conduct would disqualify the judge from hearing any cases in which the friend might be interested.

The judge's friend is the president of an association of attorneys who represent governmental entities. The association is holding a conference at an upscale resort property and the friend has been given a suite of rooms during the conference. He has invited the judge and the judge's family to stay with him and his family in the suite.

 

DISCUSSION

Analysis of the judge's question requires consideration of two separate subsections of Canon 5 of the Code of Judicial Conduct.

The first concerns acceptance of gifts from friends. Fla. Code Jud. Conduct, Canon 5D(5)(e) allows judges to freely accept gifts from relatives and close personal friends whose appearance  or interest in a case would in any event require disqualification under Canon 3E. Because a judge cannot hear a case involving such parties, no danger exists of any attempt to influence the judge's decision. In Fla. JEAC Op. 03-10, a judge inquired about a close friend's offer of a free membership at a golf club. This committee found that the judge could properly accept the offer, for the specific reason that the gift was from the friend, not from the golf club. Thus, the gift was permitted by Canon 5D(5)(e). Accordingly, if the gift in the present inquiry is deemed to be from the friend, acceptance would clearly be appropriate.

The facts presented in the current inquiry add the complicating factor of the association's involvement. Because the suite is available only as a result of the association's expenditure of considerable sums of money to hold its conference at the resort, and it does not appear that the judge's friend is paying for the suite, a question arises as to whether the judge's friend or the organization should be considered the donor of the gift.

While gifts from family and close friends are normally given solely from affection, gifts to judges from others carry with them a greater possibility that they are given with improper motives. Even if such is not the case, such gifts can create the appearance of impropriety and can lead to reprimand of the judge or other sanctions. See In re Luzzo, 756 So. 2d 76 (Fla. 2000), wherein a judge was publicly reprimanded for accepting baseball tickets from a law firm practicing before him. Canon 5D of the Code of Judicial Conduct thus contains a general prohibition of gifts to judges, but includes certain exceptions permitting gift giving to a judge in circumstances where improper motives could not reasonably be feared. The primary exceptions are contained in Canon 5D(a)-(g). The remaining exception, related to gifts from those who are not closely associated with a judge, is contained in Canon5D(5)(h). Said canon permits judges to accept

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, favors, or loans from a single source, exceeds $100.00, the judge reports it in the same manner as the judge reports gifts under Canon 6B(2).

As stated in Fla. JEAC Op. 83-05, "There is no restriction on a judge accepting a gift, even a very valuable gift, so long as Canon 5C(4)(c) is complied with. Thus a judge could accept a membership in a yacht club, or a yacht for that matter, so long as he complies with Canon 5C(4)(c) and the gift is offered to him only.” In situations where gifts are offered by persons who are not close friends or relatives of the judge, this committee has suggested that three issues should be considered before the decision to accept a gift is made. Those issues were described in Fla. JEAC Op. 97-27, wherein it was stated:

Therefore, a judge may accept a gift, bequest, favor or loan, pursuant to Canon 5D(5)(h) of the Code of Judicial Conduct, only if:

1. 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;

2. its value exceed (sic) $100, the judge reports it in the same manner as the judge reports compensation in Section 6B; and

3. the donor makes the presentation to an individual judge, rather that (sic) all the judges in the same area or court.

After analysis of all of the above factors, and consideration of who should be deemed the source of the gift, a majority of the committee concluded that, despite the involvement of the organization, the gift proposed is one from the judge's friend. The close relationship of the friend would prohibit him from appearing before the judge, bringing the gift within the exception contained in Canon 5D(5)(e), allowing the judge to accept the offer.

Even though the gift may properly be accepted, a number of the committee members felt that the judge should be reminded that some gifts, though acceptable, should perhaps be graciously declined. Present in a suite with the president of a partisan attorney's group, the judge could find himself or herself in the middle of a conversation that led to discussion of a case pending before the judge or about interests that might come before the judge. The possibility for such situations always exists, of course, but may be amplified in the setting in which the judge would be found. Other unanticipated situations could arise that would place the judge in an uncomfortable position. Further, the judge's presence at an exclusive resort, at no cost to the judge, could raise questions in the minds of parties unaware of the true nature of the gift and could provide ammunition for those seeking grounds to criticize the judge. The title of Canon 2 of the Code of Judicial Conduct states that a judge shall avoid the appearance of impropriety in all of the judge's activities. While a reasonable person with full knowledge of the details of the proposed gift would not find any appearance of impropriety in the gift, those without full knowledge or those with malicious intentions might state otherwise. Only the judge can make the final decision about whether the gift is worth the complications it might entail.

 

REFERENCES

In re Luzzo, 756 So. 2d 76, (Fla. 2000)
Fla. Code Jud. Conduct, Canons 2, 3E, 5D(a)-(h), 6B
Fla. JEAC Ops. 03-10, 97-27, 83-05

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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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.

All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator