FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-27
Date of Issue: September 19, 2019

ISSUES

1. May the chief judge appear before various local volunteer bar associations and explain a pro bono referral service which would refer military veterans with legal needs to attorneys who would provide their services pro bono?

ANSWER: Yes, provided that the inquiring judge abides by the admonitions of Canon 4A(1)-(6) of the Florida Code of Judicial Conduct.

2. May the inquiring judge the solicit attorney volunteers for the referral service when explaining this the referral service to the voluntary bar associations?

ANSWER: Yes, provided that the inquiring judge abides by the admonitions of Canon 4A(1)-(6) of the Florida Code of Judicial Conduct.

FACTS

Several years ago, The Florida Bar Foundation implemented a Pro Bono Committee in each Circuit.  The local Pro Bono Committee would like to start a veteran’s pro bono referral service which would refer military veterans with legal needs to attorneys who would provide their services pro bono.

The inquiring judge asks whether he or she may go to the various local volunteer bar associations such as the Young Lawyers, Women Lawyers, County Bar Association, Inns of Court, and the like to explain the referral service. The inquiring judge also asks whether he/she may solicit attorney volunteers for the referral service when explaining it to the voluntary bar association.

 

DISCUSSION

Issue 1

Fla. Code Jud. Conduct, Canon 4B specifically provides:

A judge is encouraged to speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch within our system of government, subject to the requirements of this Code.

The Commentary to Canon 4B provides:

Support of pro bono legal services by members of the bench is an activity that relates to improvement of the administration of justice. Accordingly, a judge may engage in activities intended to encourage attorneys to perform pro bono services, including, but not limited to: participating in events to recognize attorneys who do pro bono work, establishing general procedural or scheduling accommodations for pro bono attorneys as feasible, and acting in an advisory capacity to pro bono programs.

Notwithstanding the express authorization for judges to engage in activities intended to encourage attorneys to perform pro bono services, judges must abide by the admonitions of Canon 4A(1)-(6) of the Florida Code of Judicial Conduct when conducting all quasi-judicial activities. Fla. JEAC Op. 17-23.

Fla. Code Jud. Conduct, Canon 4A (1)-(6) provides as follows:

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; or

(6) appear to a reasonable person to be coercive.

While the Commentary’s list is not all inclusive, it does not mention appearing before various local volunteer bar associations about specific pro bono referral services. Speaking to local volunteer bar associations about a specific pro bono referral service is consistent with Canon 4B and the Commentary to Canon 4B. See also Fla. JEAC Op. 13-09 (“Mindful of [Canon 4A(1) and (6)], we opine that a judge may educate and provide information to friends, family and other members of the community regarding dependency court and the guardian ad litem program in order to secure additional volunteers for the program so long as the judge’s conduct does not appear to a reasonable person to be coercive or cast reasonable doubt on the judge’s capacity to act impartially as a judge.”)

Accordingly, the Committee is of the opinion that the inquiring judge can appear before various local volunteer bar associations to explain a pro bono referral service which would refer military veterans with legal needs to attorneys who would provide their services, provided that the inquiring judge abides by the admonitions of Fla. Code Jud. Conduct, Canon 4A(1)-(6).

Issue 2

Soliciting attorneys who would provide their services pro bono through the referral service may be viewed by some as being coercive. In Fla JEAC Op. 10-31, this Committee opined that a chief judge may send a letter soliciting lawyers’ participation in a Florida Bar campaign by donating pro bono legal services or making a monetary donation to a legal aid organization.

However, in Fla. JEAC Op. 12-26 (Question 1), we opined “that a judge may request local bar associations to convene a special lunch meeting so that the judge may solicit attorneys to volunteer for appointment as pro bono attorneys ad litem for children in dependency cases if the judge’s conduct does not appear to a reasonable person to be coercive or cast reasonable doubt on the judge’s capacity to act impartially as a judge.”

As noted in Fla. JEAC Op. 12-26, “[i]t is difficult to define with specificity the type of conduct which may appear to a reasonable person to be coercive in this context” and “[i]t is similarly difficult to define with specificity the type of conduct which may appear to cast reasonable doubt on the judge’s capacity to act impartially as a judge in this context.  However, it is common sense that such conduct would exist if it appears to a reasonable person that the judge likely will favor attorneys who volunteer for appointment and/or disfavor attorneys who do not volunteer for appointment.”

Other state judicial ethics bodies have not gone as far as this Committee did in Fla. JEAC Op. 12-26 when considering what activities judges can undertake to encourage pro bono activities by lawyers. See, for example, Alabama Judicial Inquiry Comm. Adv. Op. 04-847 (a judge may write a letter to members of a local bar association encouraging them to participate in the state bar’s volunteer lawyers program);  Kentucky Ethics Comm. of the Judiciary JE-107 (2005) (a judge may not write a personal letter urging members of the bar to donate time to a particular pro bono organization but may write a generic letter to the bar at large that does not refer to a specific organization); Texas Committee on Judicial Ethics Op. No. 258 (2000) (a board of judges may send out a letter signed by all of the judges to all members of the local bar association asking them to consider donating time and services to a volunteer lawyer project’s pro bono legal clinic).

See also Alaska Comm. on Judicial Conduct Adv. Op. 04-1 (a judge may make general appeals to participate in pro bono efforts, including referring to a list of available pro bono programs; may participate in a workshop or CLE seminar available at no cost to attorneys who undertake pro bono cases; may write articles for bar or general circulation media encouraging attorneys to participate in pro bono work; and may publicly acknowledge the pro bono activity of particular attorneys; a judge may not send letters of congratulation directly to attorneys or host a social event for attorneys who have participated in pro bono activity); Colorado Judicial Ethics Advisory Board Op. No. 06-12  (a judge may encourage attorneys to perform pro bono services and act as an advisor to the local legal service’s call-a-lawyer program); Maryland Judicial Ethics Committee Op. 13-29 (judges may solicit attorneys to represent indigent parties pro bono by writing to attorneys individually, by speaking publicly to bar gatherings, or by placing advertisements in bar publications.); Michigan Stand. Comm. on Prof’l. and Jud. Ethics J-7 (1998) (a judge may “write, speak, lecture, and otherwise participate in a wide range of activities designed to promote and encourage attorneys to engage in . . . pro bono representation”); New York Advisory Committee on Judicial Ethics Op. No. 09-68 (a judge who serves on a court pro bono committee may sign formal or handwritten letters of appreciation on behalf of the committee, using court or committee letterhead, to attorneys who serve as volunteer pro bono advocates before other judges).

Based on our opinion in Fla. JEAC Op. 12-26, the Committee is of the opinion that the inquiring judge may solicit attorney volunteers for the referral service when explaining the referral service to the voluntary bar associations.  Consistent with this opinion; however, in soliciting volunteers, “the judge must be cautious that his/her tone or delivery does not appear to a reasonable person to be coercive or cast reasonable doubt on the judge’s capacity to act impartially as a judge . . ..” Fla. JEAC Op. 12-26 (Question 1).

 

REFERENCES

Fla. Code Jud. Conduct, Canon 4A(1)-(6) and Canon 4B.
Fla. JEAC Op. 12-26 (Question 1); Fla JEAC Op. 10-31

Other: Alabama Judicial Inquiry Comm. Adv. Op. 04-847; Alaska Comm. on Judicial Conduct Adv. Op. 04-1 Colorado Judicial Ethics Advisory Board Op. No. 06-12; ); Kentucky Ethics Comm. of the Judiciary JE-107 (2005); Maryland Judicial Ethics Committee Op. 13-29; Michigan Stand. Comm. on Prof’l. and Jud. Ethics J-7 (1998); New York Advisory Committee on Judicial Ethics Op. No. 09-68 Texas Committee on Judicial Ethics Op. No. 258 (2000).

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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 W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

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 deleted)
Chief Justice Charles T. Canady, Justice Liaison
John A. Tomasino, Supreme Court Clerk
All Committee Members
General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel