Opinion 76-17

October 22, 1976

Re: Canons 2B and 4A

Dear Judge:


This is in response to your recent letter inquiring about the application of the Code of Judicial Conduct in connection with advertisements disseminated by a publishing company promoting the sale of a legal manual written by a member of the judiciary. You enclose a copy of the advertisement utilized by the publishing company which, in outlining the contents of the publication, prominently displays the author's name and judicial position and additionally, declares among other things that such publication is "A MUST FOR EVERY ATTORNEY WHO EVER TAKES AN APPEAL TO THE FLORIDA DISTRICT COURTS OF APPEALS OR THE SUPREME COURT OF FLORIDA".

Specifically, you request an opinion from the Committee on the Following questions:

1) Is this type of advertising to promote the sale of the publication in question a violation of Canon 2(A), (B) of the Code of Judicial Conduct by using the prestige of the Judge's office for his own personal gain?

2) Could the prominent use of the Judge's name in advertising the sale of the publication authored by him create a conflict of interest under Canon 3(c) between attorney who use and cite the Judges's publication as authority for their position in cases coming before him, and attorneys who are forced to take issue with the correctness of the provisions of the Judge's publication in order to support their position.

3) Whether the Judge's act of writing the Procedure Manual for publication and sale falls within the permissible activities provided in Canon 4 of the Code."

The Committee has reviewed your inquiry and is pleased to advise you as follows:

In regard to Question 1 a majority of the Committee (5-3) is of the opinion that the advertisement in question does not constitute a violation of Canon 2B, Code of Judicial Conduct, which provides in part, that a judge "should not lend the prestige of his office to advance the private interests of others". The majority calls attention to Canon 4A, which states, in part, that a judge "may speak, write, lecture, teach and participate in other activities concerning the law, the legal system and the administration of justice". One of the majority members, although concluding that the publication was not in violation of the Code, observed that the advertisement was in poor taste and that the judicial author should insist that the publisher refrain from advertising in a manner that might tend to be interpreted as exploiting that judge's position.

One of the minority members pointed out that Canon 4 does not condone an advertising or promotion scheme which utilizes the name of a judge to further the private gain of the publisher. Canon 5C was also cited by the minority in support of their view.

In regard to Question 2, a majority of the Committee (5-3) is of the opinion that the prominent use of the judge's name in the advertising does not creat (sic) a conflict of interest within the contemplation of Canon 3C relating to those circumstances under which a judge must disqualify himself. One of the majority members pointed out that there was no way such a book could be published without identifying the author to the prospective purchasers. It was also pointed out that even though a judge may have written or spoken on a specific area of the law it would not give rise to a conflict of interest with respect to those attorneys who might appear before the judge and cite the publication in question. Reference was also made by the majority to Canon 4A, which is cited above.

One of the minority members pointed out that because of such publication the judge's impartiality might be reasonably questioned and consequently he would be required to disqualify himself.

Lastly, in regard to Question 3, a majority of the Committee (5-3) is of the opinion that the judge's action in writing the treatise for publication and sale falls within the permissible activities provided in Canon 4 of the Code for the reasons set forth in answer to Questions 1 and 2.

We appreciate your interest and trust the foregoing will be of assistance to you.

Sincerely,


Gerald Mager


Chairman, Committee on Standards of Conduct Governing Judges

GM/cs

Participating members: Boyer, Carlisle, Hewitt, Murphee, O'Connell, Stephenson and Thomas MacDonald, Esquire