Wednesday, November 15, 2017

No And No

The Florida Judicial Ethics Advisory Committee says "no' to these questions

1. May a judge who serves in an advisory role for a nonprofit cultural organization when the organization takes public positions on pending legislation?

2. May a judge serve in an advisory role of a nonprofit cultural organization sign a confidentiality agreement concerning matters learned while serving in that role?


Here the nonprofit organization has signaled its intent to become political by either supporting or opposing legislation including legislation that falls under the broad and expansive umbrella of civil rights. What qualifies as civil rights and civil liberties spans an unpredictable spectrum. It has tentacles in both civil and criminal law. The inquiring judge does not alert the committee as to judicial section(s) over which the judge presides. However, Canon 5 prohibits a judge from presiding over adversary matters that would “ordinarily come before the judge” or “in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.” Fla. Code Jud. Conduct, Canon 5 C(3)(a)(i) & (ii). Continued membership in this organization could also call into question the “judge’s capacity to act impartially as a judge” and undermine the judge’s “independence, integrity [and] impartiality.” Fla. Code Jud. Conduct, Canon 5A(1) & (2).

Because of concerns over judicial independence, integrity and impartiality, we also counsel caution when a judge is asked to sign a confidentiality agreement. The inquiring judge is rightly concerned about the public perception of signing such an agreement and the possibility of becoming “entangled in controversies.” Although not all confidentiality agreements arise in circumstances where a judge’s independence, integrity and impartiality might be questioned, we stress that a judge’s fealty is to the law. It is not, and cannot be, to an organization to the detriment of that fealty. Therefore, if a judge discovers an organization practices, for example, unlawful discrimination, the judge cannot allow a confidentiality agreement to prevent the judge from disclosing that fact. In the commentary to Canon 2A, judges are admonished that they “must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and do so freely and willingly.” Signing a confidentiality agreement while serving on the board of an organization that has expressed its intent to engage in advocacy could “create in reasonable minds, with knowledge of all the relevant circumstances … a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Fla. Code Jud. Conduct, Commentary to Canon 2A.

(Mike Frisch)

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