FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2021-01
Date of Issue: March 8, 2021

ISSUE

Whether it is permissible for a judge to be a member of a voluntary bar association that endorses a particular candidate for appointment to public office.

ANSWER: No.

FACTS

The inquiring judge serves as a member of a voluntary bar association. The judge was approached by a federal prosecutor seeking to have the judge approach the leadership of the voluntary bar association to obtain the bar association's endorsement of a particular attorney for appointment as U. S. Attorney. The inquiring judge is fully aware of this Committee's Opinion No. 01-15, which provides that a judge may not maintain membership in a voluntary bar association that endorses judicial candidates during an election but seeks guidance on whether the opinion applies equally to candidates for appointed office.

 

DISCUSSION

Canon 7A(1)(b) provides: “[A] judge or a candidate for election or appointment to judicial office shall not publicly endorse or publicly oppose another candidate for public office.” This Committee in Fla. JEAC Op. 01-15 interpreted this provision as not allowing judges to publicly endorse candidates for election, and that a judge’s membership in a voluntary bar association that endorses judicial candidates is proscribed by the Code of Judicial Conduct.

Although judges are allowed to encourage lawyers to apply for judicial vacancies and communicate with selection and appointing authorities about judicial candidates, publicly doing so is proscribed.

Canon 2B provides, in pertinent part: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” The commentary to Canon 2B provides that although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation. The commentary further provides that judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration, and by responding to official inquiries concerning a person being considered for a judgeship. See also Canon 7 (regarding use of judge's name in political activities). However, neither the Code, nor its commentary, allows for public endorsements of candidates for public office, judicial or otherwise. (Emphasis added.)

[J]udges may communicate with a Judicial Nominating Committee in writing with succinct, factual statements or observations concerning the qualifications of the applicants in accordance with the standard provisions of letters of recommendation addressed in the Commentary to Canon 2B and the September 29, 1994 Opinion of the Supreme Court in In Re: Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994).

Fla. JEAC Op. 95-24; See also Fla. JEAC Op. 94-08 (stating judges prohibited from endorsing a judicial candidate).

A judge may provide unsolicited information to a Judicial Nominating Commission about a person whose application is pending before that commission. However, any judge wishing to do so must be mindful of Canon 2B which provides, "a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others. . . ." Accordingly, the Committee believes any judge who decides to encourage or solicit a lawyer to apply for a judicial vacancy should take reasonable steps toward assuring that such conversation remain private. Fla. JEAC Op. 96-23.

In Fla. JEAC Op. 88-01, this Committee determined that a judge may communicate a factual, even handed, succinct, discreet statement in support of, or in opposition to a person whose appointment is pending before the governor. (Emphasis added.)

Pursuant to Canon 7A(1)(b) a judge is not allowed to publicly endorse or publicly oppose another candidate for public office. (Emphasis added.) The Canon does not distinguish between elected office or appointed office. As such, the Committee determines that a judge may not maintain a membership in a voluntary bar association that endorses a candidate for political office, whether elected or appointed.

 

REFERENCES

In Re: Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994)
Fla. Code Jud. Conduct, Canon 2B, 7, 7A(1)(b)
Fla. JEAC Op. 01-15, 96-23, 95-24, 94-08, 88-01

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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.

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)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Supreme Court Clerk
All Committee Members
Alexander J. Williams, General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel