Thursday, September 16, 2021
The Florida Judicial Ethics Advisory Committee opines
Opinion Number: 2021-14
Date of Issue: September 1, 2021
1. May a family division judge participate in a podcast presented by the judge’s spouse, for which the spouse receives compensation, to speak on subjects related to family law?
ANSWER: Yes, provided the participation is on a limited basis and the judge’s comments are purely informational, do not constitute legal advice, and do not include commentary on pending cases or legal controversies.
2. May a judge post a congratulatory message on the web site LinkedIn when a book written by the judge’s spouse is released?
The first question raised in this inquiry falls squarely at the intersection of two provisions in the Code of Judicial Conduct that may seem to point in different directions. Canon 4 encourages Florida’s judges to “engage in activities to improve the law, the legal system, and the administration of justice.” More specifically, Canon 4B permits judges to “speak, write, lecture [and] teach” about these subjects as well as on “the role of the judiciary as an independent branch within our system of government.”
The activities authorized in general terms by Canon 4 are, however, circumscribed by Canon 4A. For example, they must not be of such a nature as to cast reasonable doubt upon the judge’s capability of ruling impartially, demean the judge’s office, lead to frequent disqualification, or interfere with the performance of the judge’s duties â€“ that is, consume an inordinate amount of the judge’s time. In Fla. JEAC Op. 2019-02, this Committee provided a “laundry list” of eight factors that a judge should consider before agreeing to speak publicly:
1. Whether the activity will detract from full time duties. Since this judge contemplates infrequent appearances on the podcast, there should be no likelihood that the judge’s professional duties will be overlooked.
2. Whether the activity will call into question the judge’s impartiality, either because of comments reflecting on a pending matter or comments construed as legal advice. The inquiring judge clearly understands this restriction, and does not plan to comment on pending cases or offer legal advice.
3. Whether the activity will appear to trade on judicial office for the judge’s personal advantage. The judge does not plan to receive compensation for the proposed appearances on the podcast, nor are the appearances connected in any way with a campaign for re-election or other efforts to advance the judge’s career. While it is certainly possible that listeners may come away with a favorable opinion of the judge, this is inherent in any situation wherein a judge’s talents are exposed to members of the public at large. It is an inescapable fact that judges can do well when they do good;
4. Whether the activity will appear to place the judge in a position to wield or succumb to undue influence in judicial matters. If the judge merely provides neutral, factual, non-case specific information there should arise no danger of other judges being improperly influenced by it, nor should it open the judge to possible undue influence in cases the judge will be handling.
5. Whether the activity will lend the prestige of judicial office to the gain of another with whom the judge is involved or from whom the judge is receiving compensation. We discuss this question in greater detail below.
6. Whether the activity will create any other conflict of interest for the judge. Given the judge’s understanding of the limitations upon what can be discussed in the podcast, there appears to be no potential for meaningful conflicts of interest. The judge could not oversee legal matters involving the spouse in any event, and the potential for litigation involving the sponsor of the podcast should be minimal, particularly if the judge remains assigned to the family law division.
7. Whether the activity will cause an entanglement with an entity or enterprise that appears frequently before the court. The inquiry does not lead the Committee to suspect that the sponsor engages in, or is potentially likely to engage in, frequent litigation. Further, since the judge plans to speak only on factual matters, and neutrally, we see no chance of the judge’s remarks being parroted back to the judge in some future family law setting.
8. Whether the activity will lack dignity or demean judicial office in any way. This consideration should not be implicated by discussing the nuts and bolts of family law. Again, as noted, the judge does not plan to discuss specific cases that might involve salacious details.
In sum, the subject matter about which the judge envisions speaking appears to be purely informative, so long as the judge does not go beyond explaining statutory family law procedures by attempting to apply those procedures to specific factual situations. Were the judge to do so, this might to intrude into giving legal advice, which judges are not permitted to do. See Canon 5G. Cf. Fla. JEAC Op. 2018-23, which approved a judge’s plan to write “an informative article about the divorce process” to be published on a for-profit web site, so long as the judge did not “comment on pending cases . . . answer hypothetical questions in a way that appears to commit to a particular position, [or] make any other remarks that could lead to the Judge’s disqualification, or be construed as an indication as to how the Judge would rule in a particular case.”
We now turn to the second provision of the Code that could impact the judge’s ability to appear on the podcasts. Canon 2B prohibits judges from “lend[ing] the prestige of judicial office to advance the private interests of the judge or others.” In the context of personal media appearances, we addressed this provision most recently in Fla. JEAC Op. 2021-10, in which the inquiring judge was a regular guest on a local public radio station’s talk show. The judge’s appearances were brief and informative in nature, and involved neither questions from the public, pending cases, nor the giving of legal advice. Additionally, the judge did not receive compensation for these appearances, an area the Committee described as “often problematic.”
Having dispensed with any significant concern that the judge’s personal interests were advanced by the radio appearances, the Committee then turned to the potential effect of the Canon 2B language “or others.” In the context of Fla. JEAC Op. 2021-10, the “other” was the radio station that frequently hosted the inquiring judge. In the present case, the judge’s proposed conduct would implicate not only the broadcaster, but the judge’s spouse as well.
With regard to the radio station, the Committee found that “[s]everal variables could potentially inform that question’s resolution, including how the station receives financial support, whether it advertises the judicial officer’s appearance and in what manner [and] whether the judge’s appearance is considered a public service/informative aspect of the station’s operation or whether it is a potential source of advertising funding for the station.” Fla. JEAC Op. 2021-10 was not unanimous in concluding that the judge’s continued radio appearances were not violative of Canon 2B. The dissent relied upon Fla. JEAC Op. 1996-25, which in turn placed great reliance upon In re the Inquiry of Evan W. Broadbelt, J.M.C., 146 N.J. 501, 683 A. 2d 543 (1996), cert. denied, 520 U.S. 1118 (1997).2
The judge’s activities in Broadbelt would certainly have caused concern if they had involved a Florida judge. Judge Broadbelt regularly appeared on commercial television programs such as Geraldo Live and Court TV to provide “guest commentary” on high-profile cases, even though, more innocently, he also appeared on a local program “to discuss generally the jurisdiction and procedures of the municipal courts.” He did not receive compensation for any of these appearances. Even so, Judge Broadbelt was found in violation of several canons, the language of which is similar to Florida’s Code of Judicial Conduct. First, the New Jersey court found that judges should not comment on cases in any jurisdiction, and not solely those likely to come before their courts. Second, and more to the point of our discussion, the judge’s regular television appearances “allowed the prestige of his judicial office to advance the private interests of commercial television.”
Broadbelt discussed in some detail two 1961 opinions by the American Bar Association, the first of which “barr[ed] judges from appearing on commercial television programs that simulate or recreate judicial proceedings,” but “did not consider whether other programs such as panel discussions or interviews would be improper.” The second opinion “approved of a judge's appearance on Meet the Press because it was ‘distinctly . . . a public service type [of show]’ similar to a news report dealing with matters of general public interest.” Notably, in the second opinion the ABA committee stated that “the nature of the program and the nature of the appearance of the lawyer or judge on it is the important thing and whether or not it is commercially sponsored is secondary.” This suggests that purely informational, neutral contributions by judges are likely to satisfy ethical standards even if delivered via a commercial medium.3
Fla. JEAC Op. 1996-25, which cites other authorities in addition to Broadbelt, offered several explanations why a judge’s regular participation in a commercial talk show could run afoul of the Code of Judicial Conduct. Canon 5A concerns itself directly with extrajudicial activities. Under this rule, “a judge's extrajudicial activities must be conducted in such a manner so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; (3) interfere with the proper performance of judicial duties.” The Committee finds reason for concern that each of these considerations under Canon 5A is implicated by the present inquiry.
“A judge must ensure that extrajudicial activities do not cast reasonable doubt on the judge's capacity to act impartially as a judge. Here the inquiring judge proposes to comment extensively on issues arising, and have actually arisen in other courts around the United States. In this context, it would be nearly impossible for the judge to avoid injecting his own legal opinion or foreshadowing how he might rule on a contested legal issue. On the question of demeaning the judicial office, the Committee recognizes that, in view of many, television news is largely a commercial endeavor. As recent experience with several high publicity legal proceedings has demonstrated, issues that come before courts are often not conducive to exposition in the ‘soundbyte’ format of television news. Unfortunately, the extremely limited time available to a commentator on a television news show is not conducive to full and fair explanation of complex legal proceedings. Accordingly, the Committee has serious concerns that the commercial and entertainment aspects of a regular judicial appearance on a television news show might well outweigh the legitimate public information aspects.
“Finally, with regard to the third consideration under Canon 5A, an extrajudicial activity must not interfere with the proper performance of judicial duties. Here, the judge proposes regular appearances on a local television news broadcast. Such an arrangement could well lead to a public perception that the judge has priorities other than proper performance of judicial duties. Moreover, Article V, Section 13 of the Florida Constitution mandates that all judges shall devote full time to their judicial duties. Again, the very real risk is the perception that the inquiring judge would be viewed as devoting a substantial amount of their productive time to a very public commercial endeavor unrelated to judicial duties.”
“In addition to the canons discussed above, Canon 5D(1)(b) may well be implicated. Members of the electronic media are frequently litigants in the courts of this state. Under this portion of the Code of Judicial Conduct a judge must avoid engaging in continuing business relationships with persons likely to come before the court.”
Our impression is that a judge’s infrequent appearances on a podcast, limited to providing nonjudgmental information about the family court system, is a situation qualitatively different than the practices engaged in by the judge in Broadbelt and contemplated by the inquiring judge in Fla JEAC Op. 1996-25. However, this does not end the inquiry. While it may be that sporadic appearances on the podcast may have little effect on the broadcaster’s bottom line, we must not overlook the fact that the inquiring judge’s proposal will necessarily provide some benefit to the judge’s spouse, who, as noted, receives compensation for the podcasts. “A judge shall not allow family â€¦ relationships to influence the judge’s judicial conduct” (emphasis added). The Commentary to Canon 2B provides only a single example of what this provision seeks to avoid: “[A] judge must not use the judge’s judicial position to gain advantage in a civil suit involving a member of the judge’s family.” In addition to making rulings that might benefit a family member, other examples would include judges hiring a relative or lobbying law firms or court administration to do so. 4
The question posed in the current inquiry appears to be unique in this Committee’s history. For one thing, podcasts are a recent innovation, though it would not surprise us to learn of judges whose spouses may have performed on radio talk shows or worked as reporters seeking an interesting story for the newspapers or magazines that employed them. We just have not been asked, until now, to consider whether or to what extent judges may lend their time and experience when it is a spouse, and not a stranger, who wishes to elicit comment that a judge otherwise would be within the graces of the Canons to furnish.
An analogy perhaps may be drawn to books, articles, and scholarly papers written by judges. While this Committee has often written on such questions as the content of writings and how extensively their judicial authors may promote them, even though writing is often a collaborative effort we have less frequently addressed the question whether a judge may partner with someone else â€“ colleague, fellow lawyer, friend â€“ to write something and then advertise it. To do so inures to the benefit of not only the judge, but the other author as well. Fla. JEAC Op. 1998-1 is not directly on point â€“ it involved a judge who wished to write a crime novel with assistance from an Assistant State Attorney, but did not contemplate co-authorship â€“ but the opinion also includes a review of earlier opinions including some wherein judges contemplated joint projects. While the trend is generally favorable to co-authorships, many of our prior opinions focus on disqualification/disclosure more so than lending judicial prestige to the co-authors. Most directly on point is Fla. JEAC Op. 1978-12, in which three Committee members dissented, believing the proposal to co-author a procedure manual with a lawyer would intrude into lending judicial prestige, while the majority concluded the joint authorship was ethically permissible.
Though the distinction may be a fine one, the Committee finds it relevant that the judge’s spouse is already involved in the process of recording and airing the podcasts, and would continue to do so regardless of whether the judge made an occasional contribution â€“ that is, we are not dealing with the situation where the judge is intervening with a broadcaster in order to obtain a position, contract, or extra compensation for the spouse. Thus, we do not believe the inquiring judge would run afoul of the Code by occasionally appearing on the podcast to provide non-case-specific information about the family court system.
It must be noted that two members of the Committee dissent from this conclusion, expressing their belief that the judge’s proposed activity would lend the prestige of office to the podcast.
As for the inquiring judge’s second question, we begin our discussion by excerpting the following information from the web site LinkedIn.com itself: LinkedIn is “the world's largest professional network with 756 million members in more than 200 countries and territories worldwide.” Its vision is to “[c]reate economic opportunity for every member of the global workforce” by “connect[ing] the world’s professionals to make them more productive and successful.” The site, which is a subsidiary of Microsoft, “leads a diversified business with revenues from membership subscriptions, advertising sales and recruitment solutions.” 5
As indicated above, this Committee has received many inquiries from judges who have written books. In Fla. JEAC Op. 2020-21, we acknowledged that a judge who had written a biography of a noted attorney should be allowed to promote the book, including on web sites like Facebook, provided the judge operated within guidelines established by the Code of Judicial Conduct (essentially those discussed in this opinion under Issue 1). But see Fla. JEAC Op. 2019-18, cautioning against “endorsement of any products, persons, services, or materials.” The Committee has not addressed such issues as whether a judge may publish a review of a book written by someone else, even if intended as a scholarly criticism.
Similar to the position this Committee has taken on vetting judicial candidates’ campaign literature, we have not asked the inquiring judge to provide the exact language of the proposed congratulatory message. We believe that it is enough that the message will draw readers’ attention to the book’s publication, which is likely to be perceived as an endorsement and promotion of the book. Moreover, there is a substantial likelihood that the judge’s posting will come to the attention of attorneys, court staff, fellow judges, and other persons whom the judge is in a position to influence. There is also potential for persons desirous of currying favor with the judge to purchase the book and make it known that they did so. This is particularly so given the nature of the LinkedIn web site â€“ designed for networking among professional people such as lawyers - and the uses to which it is put. We conclude that the judge should err on the side of caution and let the book â€“ and its author â€“ speak for themselves. We trust that the judge’s spouse is already aware of the judge’s pride in this achievement.
One member of the Committee disagrees with this conclusion, having the opinion that the proposed activity is permissible under the Code.