SUBJECT: Can a judge conduct fundraising among
fellow judges for legal aid?
Canon 4 and Canon 2
The inquiring judge has been asked by the local legal aid board to conduct fundraising among her "fellow judges." The judge does not provide details about the fundraising but states that legal aid is currently involved in a effort to raise funds for legal representation of indigent persons. The inquiring judge is not an officer or director of legal aid. Her specific questions are:
(a) Is a legal aid organization an agency "devoted to the improvement of the law, the legal system or the administration of justice? It affords legal representation to those unable to otherwise afford such representation and thereby increases access to the courts. On the other hand, it is comprised of lawyers who adopt an advocate's position on cases which may come before me. I am presently assigned to the family division and, effective January 1, 1996, will be assigned to a civil division. Legal Aid of Jacksonville, Inc., will likely have cases in each division.
(b)Would I be correct in assuming that even if I may solicit funds from my fellow circuit judges that I could not do so from the county judges inasmuch as I "exercise...appellate authority" over certain of their cases?
In Opinion 95-42, this Committee decided that the inquiring judge could sign a resolution of the local bar association which supports an increase in circuit court filing fees for the purpose of providing funding to legal aid. We relied on Canon 4 which permits a judge to engage in activities to improve the law, legal system, and the administration of justice. A contrary view was expressed by one member of the Committee whose response to the chairman stated:
It is clear that any additional filing fees, if adopted, will directly benefit Jacksonville Legal Aid, Inc., which by definition is a corporation. By actively endorsing an increase in the circuit court's filing, (the judge) would in essence be endorsing and raising money for the corporation. This is because any money raised is specifically earmarked for Jacksonville Legal Aid, Inc.
I don't believe that we, as a Committee, should necessarily look at the good work performed by legal aid in determining whether to approve of (the judge's) conduct. Instead, I suggest that we focus our attention on whether a judge should publicly support and raise funds (albeit indirectly) for a corporation, through a court mechanism.
The present inquiry removes the indirect factor that may have been determinative in Opinion 95-42. The inquiring judge now asks quite plainly whether she may directly engage in fundraising for legal aid. A clear majority of the Committee finds the answer to this question to be no. Under the scenario presented to the Committee, the judge would be obtaining funds and pledges which would be remitted directly to legal aid in order to defray their expenses, including, presumably, rent and salaries. As the inquiring judge has stated legal aid will likely have cases in both the Family Division and Civil Divisions of her court. She expects, in the short term, to be assigned to both divisions.
Under Canon 4D, a majority of the Committee would find that legal aid is not an organization devoted to the improvement of the law, the legal system, or the administration of justice. It is, rather, in the nature of a law firm that limits its representation to indigent clients. Under Canon 4D(1)(a) and (b) and Canon 5C(3)(a)(i) and (ii), the Committee finds that legal aid is frequently involved in litigation and adversary proceedings that are likely to come before the inquiring judge, as well as before the court of which this judge is a member. While these provisions speak directly to the judge's participation as an officer, director, trustee, or non legal advisor, the Committee believes that a person engaging in fundraising would be subject to the same limitations.
Canon 2A and B also suggest that a judge should not be involved in fundraising for legal aid. The topic of legal aid as an organization supported, at least in part, by governmental funding, is a very heated political issue. By engaging in direct fundraising for legal aid, a judge would have threatened the aura of impartiality that is essential to a fair judiciary. As a fundraiser, the judge would also be placed in the position of having it publicly known that she, as a judge, has directly supported the interests of legal aid. The Committee notes that in the community from which this inquiry comes there are many hundreds of lawyers who could handle fundraising. The letter does not suggest any reasons why legal aid would want a judge to solicit funds, except for the fact that she is a judge.
Because the Committee finds that the inquiring judge may not solicit funds on behalf of legal aid, the second question is moot.
Two members of the committee take different views. One member would find that legal aid is in fact "devoted to the improvement of the law, the legal system, or the administration of justice," and would so respond to the first question. This member, however, concurs that under Canon 4D(1)(a) and (b), and Canon 5C(3)(a)(i) and (ii), legal aid is frequently involved in litigation and adversary proceedings that are likely to come before the judge, as well as before the curt of which the judge is a member, and would therefore agree with the majority of the Committee that this judge should not solicit funds for legal aid.
Another member of the Committee dissents entirely, also believing that legal aid is an agency "devoted to the improvement of the law, the legal system, or the administration of justice." This member states that legal aid should not be viewed as a law firm or a party, and does not understand how soliciting funds for legal would impact the impartiality of the court (sic).This member does not know of any agenda that legal aid has other than providing competent legal service to litigants who cannot otherwise afford it. Accordingly, this member would allow the inquiring judge to solicit funds from other judges as to whom she does not sit in an appellate or supervisory capacity.
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 18th day of March, 1997.
Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges
Participation Members: Judges Cardonne, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Smith, Tolton and Attorney Novicki
cc: All Committee Members
Office of the State Courts Administrator (name of judge deleted from this copy)