Thursday, October 15, 2009

Judge May Endorse Discovery Proclamation

A judge may endorse the Sedona Conference Cooperation Proclamation without running afoul of ethics rules, according to a recent opinion of Florida's Judicial Ethics Advisory Committee. The inquiry:

The inquiring judge seeks to endorse the Cooperation Proclamation, and authorize the Sedona Conference to include the judge’s name in the endorsements section.  The judge also wishes to promote, distribute, and speak at bar association meetings in support of the proclamation and its principles. The judge hopes that endorsement of the Cooperation Proclamation in these ways will assist in improving the quality of the practice of law in the state of Florida.  The inquiring judge requests an advisory opinion as to whether such actions are permitted by the Florida Code of Judicial Conduct.

The conclusion:

The Committee is of the opinion that endorsement of the Cooperation Proclamation in the manner described by the inquiring judge is a quasi-judicial activity concerning the law, the legal system, and the administration of justice, which is encouraged by the Code of Judicial Conduct.

   Other JEAC opinions support this conclusion.  See Fla. JEAC Op. 98-31 (opining that judge may be a member of a voluntary bar association that joins a political action committee to support a proposed constitutional amendment); Fla. JEAC Op. 98-14 (opining that judge may advocate a position on proposed constitutional amendments in non-partisan public forums); Fla. JEAC Op. 94-01 (opining that judge may publicly advocate the signing of two petitions to amend the constitution); Fla. JEAC Op. 78-3 (opining that the Code does not proscribe member of the judiciary from expressing personal views in public regarding proposed constitutional amendments); Fla. JEAC Op. 76-16 (opining that judge’s efforts to educate the general public about a constitutional amendment are permissible under the Code).   See also In re Inquiry Concerning a Judge, 417 So.2d 950, 954 (1982)(“There is no doubt that a judge in an appropriate forum may express his protest, dissent, and criticism of the present state of the law as long as he does not appear to substitute his concept of what the law ought to be for what the law actually is, and as long as he expresses himself in a manner that promotes public confidence in his integrity and impartiality as a judge.”)

The Committee reminds the judge,  however, that while such quasi-judicial activities are encouraged by Canon 4B, they are also subject to other provisions of the Code of Judicial Conduct.  For example, a judge “shall not personally or directly participate in the solicitation of funds,” or engage in activities that “cast reasonable doubt on his or her capacity to act impartially as a judge” or “lead to frequent disqualification of a judge.” See Canons 4D(2)(a) and 4A(1). Accordingly, as was  recommended by the Committee on Codes of Conduct of the Judicial Conference of the United States, this Committee also recommends that the judge retain some measure of control over the use of the judge’s endorsement, including the right to veto inappropriate use of the endorsement.

(Mike Frisch)

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