SUBJECT: Are trial court law clerks, "performing judicial functions"
within the definition of "judge" and may a trial court law
clerk submit a character reference letter for a pre-sentence report?
The inquiring circuit judge raises two issues on behalf of a trial court law clerk subject to the inquiring judges's supervision.
1.Are trial court law clerks "performing judicial functions" within the definition of "judge" as found in the Code of Judicial Conduct? If not, does the Code directly apply to trial court law clerks in another way?
2.May a trial court law clerk, on his/her own initiative, submit a character reference letter for a pre-sentence report when the letter is not on court letterhead, is not signed with a title accompanying the signature line, and otherwise makes no reference to the author's position with the court?
The Committee concludes that trial court law clerks are not "performing judicial functions" so as to be expressly subject to the application of the Code of Judicial Conduct as provided in the Code itself. The Code does, however, indirectly apply to law clerks. Under Canon 7C(2), a judge shall require staff, court officials and others subject to the judges's direction and control to observe the standards of fidelity and diligence that apply to the judge. Although the responsibility in this particular Canon is placed upon the judge, the Committee believes that a law clerk who willfully or negligently violates an applicable standard of fidelity or diligence is guilty of a transgression by acting in such a way as to thwart the judge's opportunity to exercise supervision. The only Canon form which law clerks appear to be specifically exempted, at least in part, by an opinion of the committee is Canon 7 concerning political activity. Opinion 93-45. Canon 1 and Canon 2, on the other hand, appear to establish the types of duties of fidelity and diligence that should apply in cases of persons subject to the supervision of a Florida judge.
In answer to the second question, the Committee finds that a trial court law clerk should not submit a character reference letter for a pre-sentence report, even where the author's title is completely omitted. Under the commentary to Canon 2B, a judge may, based upon the judge's personal knowledge, serve as a reference or provide a letter of recommendation. Judges are, however, prohibited from initiating communication of information to a sentencing judge, probation officer or correction's officer. Because an activity such as sentencing in a criminal case is so integrally tied to the performance of judicial responsibilities, the Committee does not believe a law clerk could escape his own identity should he decide to write such a letter, even if the letter is not accompanied by the law clerk's title, nor makes any reference to the law clerk's position with the court.
The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).
Dated the 21st day of January, 1997.
Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges
Participation Members: Judges Cardonne, Dell, Green, C. Kahn, L. Kahn, Patterson, Rushing, Smith, Tolton and Attorney Novicki
cc: All Committee Members
Office of the State Courts Administrator (name of judge deleted from this copy)