FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-26
Date of Issue: December 10, 2020

ISSUE

Whether an outgoing judge may authorize a prospective employer to advertise the judge’s anticipated post-judicial employment at the firm.

ANSWER: No.

FACTS

The inquiring judge will be leaving judicial office in the next few months. The judge has secured prospective post-judicial employment at a private law firm. The firm has indicated that it would like to immediately begin advertising the judge’s affiliation with the firm with respect to the anticipated post-judicial employment. The inquiring judge’s term ends on January 5, 2021.

The inquiring judge wishes to know whether the law firm’s advertising would be prohibited by the Code of Judicial Conduct.

 

DISCUSSION

There are three judicial canons this inquiry appears to implicate. Canon 2A states “[a] judge . . . shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2B states “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” And Canon 5A provides that “[a] judge shall conduct all of the judge’s extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) undermine the judge’s independence, integrity, or impartiality; (3) demean the judicial office; (4) interfere with the proper performance of judicial duties; (5) lead to frequent disqualification of the judge; or (6) appear to a reasonable person to be coercive.”

Our Committee has not squarely addressed the specific issue the inquiring judge has raised. However, our federal counterpart, the Committee on Codes of Conduct of the Judicial Conference of the United States, has. In Committee on Codes of Conduct Advisory Opinion No. 84: Pursuit of Post-Judicial Employment, the federal committee observed:

Questions also may arise concerning a future employer’s desire to announce or otherwise advertise a judge’s post-judicial employment. On these questions, the Committee has advised that once the judge has actually resigned and joined the new employer, it is not improper for the employer’s formal announcement of affiliation to identify the office and court from which the judge retired or resigned. However, that guidance assumes the announcement is made after the judge has left the bench. A post-resignation announcement avoids the appearance of impropriety because, after a judge has left the bench, the judge has no judicial position, and therefore no position to exploit. However, while a judge remains in office, this risk remains. In addition, the Committee has advised that by allowing a future employer to advertise the judge’s employment while the judge remains in office, the judge unavoidably lends the prestige of judicial office to advance the private interests of the future employer. Similarly, the prospect of a pre-resignation announcement raises Canon 2 concerns for the judge. Although the judge may not enjoy any immediate profit from the announcement, the judge’s future employer likely benefits from its association with a sitting judge, and the judge arguably stands to gain indirectly from the public advertisement of the judge’s post-judicial employment. It follows that announcements of the judge’s future employment made through interviews or contacts with the media are subject to the same restrictions.

We agree that by “allowing a future employer to advertise the judge’s employment while the judge remains in office, the judge unavoidably lends the prestige of judicial office to advance the private interests of the future employer.” Accordingly, we answer the inquiring judge’s question in the negative.

There are three judicial canons this inquiry appears to implicate. Canon 2A states “[a] judge . . . shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2B states “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” And Canon 5A provides that “[a] judge shall conduct all of the judge’s extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) undermine the judge’s independence, integrity, or impartiality; (3) demean the judicial office; (4) interfere with the proper performance of judicial duties; (5) lead to frequent disqualification of the judge; or (6) appear to a reasonable person to be coercive.”

Our Committee has not squarely addressed the specific issue the inquiring judge has raised. However, our federal counterpart, the Committee on Codes of Conduct of the Judicial Conference of the United States, has. In Committee on Codes of Conduct Advisory Opinion No. 84: Pursuit of Post-Judicial Employment, the federal committee observed:

Questions also may arise concerning a future employer’s desire to announce or otherwise advertise a judge’s post-judicial employment. On these questions, the Committee has advised that once the judge has actually resigned and joined the new employer, it is not improper for the employer’s formal announcement of affiliation to identify the office and court from which the judge retired or resigned. However, that guidance assumes the announcement is made after the judge has left the bench. A post-resignation announcement avoids the appearance of impropriety because, after a judge has left the bench, the judge has no judicial position, and therefore no position to exploit. However, while a judge remains in office, this risk remains. In addition, the Committee has advised that by allowing a future employer to advertise the judge’s employment while the judge remains in office, the judge unavoidably lends the prestige of judicial office to advance the private interests of the future employer. Similarly, the prospect of a pre-resignation announcement raises Canon 2 concerns for the judge. Although the judge may not enjoy any immediate profit from the announcement, the judge’s future employer likely benefits from its association with a sitting judge, and the judge arguably stands to gain indirectly from the public advertisement of the judge’s post-judicial employment. It follows that announcements of the judge’s future employment made through interviews or contacts with the media are subject to the same restrictions.

We agree that by “allowing a future employer to advertise the judge’s employment while the judge remains in office, the judge unavoidably lends the prestige of judicial office to advance the private interests of the future employer.” Accordingly, we answer the inquiring judge’s question in the negative.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 2A; 2B; 5A
Committee on Codes of Conduct Advisory Opinion No. 84

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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 of the committee.   See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with whether the proposed conduct violates a provision of that Code.

For further information, contact Mark Herron, Esq., Judicial Ethics Advisory Committee Chair, Messer Caparello, P.A., Post Office Box 1701, Tallahassee, FL 32302 or JEAC@flcourts.org.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.

All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Chief Justice Charles T. Canady, Justice Liaison
John A. Tomasino, Supreme Court Clerk
All Committee Members
General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel