Having recently been appointed as chair for the Judicial Relations Subcommittee of the 4th Circuit’s Professionalism Committee, I felt compelled to write this article. It also seemed fitting to have the article published under this column, since I have been involved with the Professionalism Column Subcommittee of the JBA’s Professionalism Committee for the past two years as its chair. I have become familiar with various issues and ethical dilemmas that the bar faces while I’ve served on the JBA’s Board of Governors. In addition, while working within the judiciary as a staff attorney in the 4th Judicial Circuit for 10 years and as an administrative law clerk in the United States District Court for the past two years, I have been privy to some of the predicaments that our profession presents for the bench as well.
I recall one judge confiding in me several years ago that he had not realized the extent of the loneliness and restrictions that would accompany his judicial position. As a judge, one often is concerned about which functions to attend, which clubs and organizations to join, where to appear and what places to avoid, who to contribute to, who to share property with, and where to speak or teach. Can a judge accept an invitation to participate in any seminar, at any resort, sponsored by any law firm? Can he jointly own real property with a lawyer? The more that attorneys are aware of, and sensitive to, these concerns, the more they can avoid subjecting judges to an appearance of impropriety and an embarrassment for both the bench and bar.
To avoid compromising situations, it might help if we were all more aware of the Advisory Opinions that are rendered by the Judicial Ethics Advisory Committee (JEAC). The JEAC interprets the application of the Code of Judicial Conduct to certain situations confronting or affecting a judge or judicial candidate. At the end of each of its written opinions, the Committee explains that while the Judicial Qualifications Commission (JQC) is “not bound by the interpretive opinions by the Committee,” any conduct that is consistent with the opinions published by the Committee is considered to be evidence of “good faith” on the part of the judge by the Florida Supreme Court upon reviewing the JQC’s recommendations for discipline. The Committee only responds to inquiries from the judiciary. Nevertheless, its opinions provide critical guidance not only for the bench, but for the bar in its relations with the bench as well.
Recently, the JEAC opined that several Canons of the Code of Judicial Conduct would be violated if a judge accepts an invitation to participate in a mock trial at an educational seminar held at a private law firm’s retreat, especially where lawyers from the firm are likely to appear in court before the judge and where the retreat is at an exclusive resort. (JEAC Op. 2003-03, issued on April 15, 2003.) For example, it would violate Canon 2, which requires a judge to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, prohibits a judge from lending the prestige of judicial office to advance private interests, and forbids the judge from permitting others to convey the impression that they are in a special position to influence the judge. Also, there would be violations of Canons 5 and 6, which permit a judge to receive compensation for quasi-judicial activities only if the gift/favor is not from anyone likely to come before the judge and the source of payment does not give an appearance of influencing the judge or otherwise give the appearance of impropriety. The JEAC opined that a judge who is being entertained at an exclusive resort by a law firm whose clients appear before him gives an appearance of influence and impropriety. In addition, being an honored guest at an opposing firm’s retreat held at an exclusive resort would violate Canon 4(A), which prohibits a judge’s quasi-judicial activities from casting reasonable doubt on the judge’s capacity to act impartially.
The commentary to Canon 4 encourages judges to improve the law, legal system and administration of justice by speaking, writing, lecturing, teaching and participating in quasi-judicial activities concerning the law. Aside from the JEAC’s interpretation of some restrictions to Canon 4, such as the one described above, the Committee expressly continues to find it acceptable for a judge to teach in a law school (JEAC Op. 75-28), to lecture at a legal seminar sponsored by a private corporation (JEAC Op. 92-45), to sponsor and organize seminars for attorneys (JEAC Op. 92-29), to teach “church law” at a religious university (JEAC Op. 97-26), to participate in a legal seminar sponsored by a private law firm in conjunction with the Academy of Florida Trial Lawyers (JEAC Op. 87-3), and to attend and speak on law-related or trial-related issues at luncheons, receptions, and social events sponsored by bar associations of either plaintiff’s or defense lawyers, provided that any value for attending the function that is above $100, other than reimbursements for expenses, is reported under the requirements of Canon 6 (JEAC Op. 2000-14 and Op. 2002-20 Op. 99-23). See JEAC Op. 2003-03.
Judges and lawyers inter-mingle in many ways, raising other concerns as well. If, before joining the bench, the judge worked in a firm that now appears before him, disqualification is required (unless it is waived by the parties after disclosure) where payments are due from the law firm pursuant to a promissory note because the judge would have an interest in the future financial success of the firm, lending to a perception of impropriety and questionable impartiality. JEAC Op. 2000-34, amended. Likewise, disclosure is required if a judge jointly owns real property with an attorney (even an attorney who infrequently appears before him), and the judge must be disqualified from any case involving that attorney or his firm, unless the parties waive the conflict. JEAC Op. 2002-19; see also JEAC 2001-11 (concluding that an administrative judge in the county criminal division who jointly owns a lakeside trailer with the state attorney and others, must disqualify himself from all cases involving the state attorney’s office, and, if he is unable to minimize the number of cases in which he is disqualified as a result of joint ownership of this property with the state attorney, the judge must divest himself of the property as soon as can be done without serious financial detriment).
Can a judge play tennis with a lawyer once a week without having to disclose it and recuse himself every time a lawyer from that firm appears before him? Yes, but it “may be prudent to disclose this to an out-of-town attorney.” JEAC Op. 93-56. Of course, recusal is required regardless of the extent of the judge’s social relationship with an attorney if a motion for recusal is filed and is legally sufficient. On the other hand, if the judge discloses a possible conflict due to his relationship with a lawyer, the judge should recuse himself regardless of the legal sufficiency of any motion for recusal.
May a judge participate in an e-mail forum composed of real estate lawyers? Yes, but only with the condition that the judge’s participation is limited to reading the postings of the e-mail forum and the e-mail participants strictly abide by the prohibition against ex parte communication with the judge on impending matters. JEAC Op. 2001-02. If it becomes too difficult to abide by that, the judge must withdraw from the forum.
How freely can a judge divulge information to a lawyer during an investigation? This question came up several times during my tenure at the Fourth Circuit. In Opinion 2003-04 (issued on May 1, 2003), the JEAC overruled its previous Opinions 98-15 and 00-07, which had required judges to be subpoenaed before giving voluntary statements to authorities conducting an investigation. Now, a judge may review documents and be interviewed by a lawyer about a matter in which he will be a fact witness, and may provide non-testimonial information about factual matters “pursuant to a formal request” but without the necessity of a subpoena. This change allows the judge to cooperate with investigative entities such as law enforcement, The Florida Bar, the JQC, a probation officer, and a parole officer. However, if the judge’s sworn statement is requested (at a deposition, a trial, or otherwise), the judge is required to be under a subpoena to avoid lending the prestige of judicial office to one side or the other. (JEAC Op. 2003-04.)
Those are just a few of the issues that I have noticed arising from relations between the bench and bar. The JEAC’s Advisory Opinions can be found at www.jud6.org under “Legal Practice and Resources,” and then under “Opinions.” These Opinions should be read in their entirety in order to get a full understanding of the reasoning and exceptions to each of the general principles discussed in this article. As Chair of the Judicial Relations Subcommittee, I would like to encourage the bench and bar to review the JEAC Opinions in an effort to help each other preserve the high level of professionalism that currently exists in our legal community.