May 14, 1982
This is in response to your recent inquiry. Your first question is whether a Judge may properly furnish authorities to an Appellate Court concerning a case before it. Of the ten members on the Committee on standards responding to this inquiry, eight were of the opinion that Canon 3A(4) proscribes this activity. As one member noted this
"is not a disinterested reference to matters published in the public domain made in casual discussion between Judges of different Courts. The Judge is seeking the communication here either is, or appears to be, an advocate; and his participation in the case would no doubt anger the litigants and attorneys or at least one side of the controversy.
In short, the primary problem, lack of judicial impartiality, or the appearance thereof, renders such communication improper."
Your second questions is whether a Judge who has a decision pending before an Appellate Court can apprise the Appellate Court of recent decisions pertaining to the case so long as copies are sent on to the attorneys. Again, eight members of the committee felt this activity to be improper. It was felt in the event of reversal, the Judges impartiality and neutrality would at best be questionable and would prohibit him from conducting the new trial.
The two dissenting members felt a Judge could inform an Appellate Court of recent cases or authorities without taking on the role of an advocate. These members felt the Judges responsibility to the law outweighs concerns about the appearance of impropriety
James T. Carlisle, Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committte Members
cc: All Committee Members
Sid White, Clerk of the Supreme Court
Mr. Mark Hulsey, Chairman, Florida Judicial Qualifications Commission
Linda H. Yates, Managing Editor, Florida Bar Journal
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the U.S.
All references to the inquiring judge deleted
Participating members: Carlisle, Booth, Hewitt, Green, Jr., Nesbitt, Letts, O'Connell, Richardson, Turner and Samuel Powers, Attorney