FLORIDA SUPREME COURT
JUDICIAL ETHICS ADVISORY COMMITTEE
Opinion Number: 2000-06
Date of Issue: February 11, 2000
WHETHER A CHIEF JUDGE VIOLATES THE CODE OF JUDICIAL CONDUCT BY AUTHORING A LETTER TO LAWYERS WITHIN THE CIRCUIT SOLICITING THEM TO JOIN LEGAL AID ORGANIZATIONS TO PERFORM PRO BONO WORK OR PAY $350 "IN LIEU OF SERVICES" AS A CONTRIBUTION TO THE LEGAL AID ORGANIZATION?
Whether a chief judge violates the code of judicial conduct by authoring a
letter to lawyers within the circuit soliciting them to join legal aid organizations
to perform pro bono work or pay $350 "in lieu of services" as a contribution
to the legal aid organization?
ANSWER: Yes, pursuant to Canons 2A, 2B, 4D(2), and 5C(3).
The inquiring Chief Judge has been requested by the executive director of a legal aid organization to author a letter to lawyers in the circuit soliciting them to join the program as a pro bono volunteer. The legal aid program is one of three in the circuit and the Chief Judge, if allowed by the Code of Judicial Conduct, will write letters for all three organizations.
The executive director wants the Chief Judge to author the letter because the technique has been successfully used by other pro bono coordinators "in recruiting volunteers and/or the $350 in lieu of service contribution." The executive director believes it would be a great help to the program if the judge signed the letter. The executive director asked the judge to consider ethical rules governing fund-raising before responding. Although the judge does not state whether the judge is a member or officer of the association, for purposes of the issue, it does not matter.
This Committee has previously addressed similar issues concerning legal aid organizations.In Opinion 97-6, the inquiry was whether a judge could conduct fund-raising among fellow judges for legal aid. The Committee wrote that the judge could not solicit funds on behalf of legal aid because legal aid is frequently involved in litigation which may come before the judge. This violates Canon 5C(3). In Opinion 88-31, a judge asked whether it was ethical to participate in a fashion show which was a fund-raiser for legal aid. The Committee wrote that "the mere fact that the event has fund-raising as its objective forecloses participation by members of the judiciary," citing Canon 5B(2). The same analysis applies in this case.
First, the letter is obviously being used to solicit membership and to solicit funds. This is a violation of Canon 4D(2)(d) which states that a judge "shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitations." The commentary to Canon 4D(2) recognizes that a solicitation from a judge may be perceived as coercive and the lawyer receiving the letter may feel tempted to respond favorably because the judge is in a position of influence and power. The situation is aggravated in this case because the judge writing the letter is the Chief Judge of the circuit; by statute the administrative and supervisory judge of the circuit.
Second, Canon 2A and 2B suggest that a judge should not be involved in fund-raising for legal aid. Canon 2A and 2B require that a judge conduct his or her personal activities to avoid impropriety and the appearance of impropriety. The lawyers and litigants may perceive that the judge is partial toward legal aid when the organization represents a client in court. This perception would diminish the judge's role as an impartial and neutral arbiter. Third, legal aid frequently represents clients who litigate before judges of the circuit, including the Chief Judge. Canon 5C(3) speaks to a judge who serves as an officer, director or trustee of an eleemosynary or non-profit organization. Canon 5C(3) prevents a judge from serving as an officer, director or trustee if it is likely that the organization will be engaged in proceedings that would come before the judge at a hearing or as part of an appeal. Further, Canon 5C(3) does not allow a judge as an officer, director or trustee to use or permit the use of "the prestige of judicial office for fund-raising or membership solicitation." We see no distinction that would allow a judge to participate in fund-raising and solicitation for membership even though not an officer, director or trustee.
The Committee concludes that the judge may not author a letter soliciting membership or $350 in lieu of services because the Code of Judicial Conduct prohibits a judge from soliciting memberships and fund-raising.
Florida Code of Judicial Conduct Canons 2A, 2B, 4D, and 5C(3).
Florida Judicial Ethics Advisory Committee Opinions: 88-31 and 97-6.
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 by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.
For further information, contact The Honorable C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, DeLand Jail Building, 130 West New York Avenue, DeLand, Florida, 32720.
Participating Members: Judges C. Kahn, L. Kahn, Levy, Rodriguez, Silverman, Smith and Thompson.Copies furnished to: