CODE OF JUDICIAL CONDUCT
| Decision Date | 20 February 2003 |
| Docket Number | No. SC02-1034., No. SC02-147 |
| Citation | 840 So.2d 1023 |
| Parties | CODE OF JUDICIAL CONDUCT. Amendments to the Code of Judicial Conduct and Rules Regulating The Florida Bar Re Pro Bono Activities by Judges and Judicial Staff. |
| Court | Florida Supreme Court |
The Honorable Scott J. Silverman, Chair, Florida Supreme Court Judicial Ethics Advisory Committee, Miami, FL, for Petitioner in No. SC02-147.
The Honorable Joseph P. Farina, Chief Judge, Eleventh Judicial Circuit, Former Chair, Florida Conference of Circuit Court Judges, Miami, FL; the Honorable Belvin Perry, Jr., Conference Chair, Florida Conference of Circuit Court Judges, Orlando, FL; the Honorable Beth Bloom, President, Florida Conference of County Court Judges, Miami, FL; the Honorable Charles J. Kahn, Jr., First District Court of Appeal, Tallahassee, FL, and Ervin Gonzalez of Colson, Hicks & Eidson, Coral Gables, FL, on behalf of the Florida Judicial Ethics Advisory Committee; the Honorable Jacqueline R. Griffin, Chair, Ad hoc Committee on Judicial Pro Bono for the Conference of District Court of Appeal Judges, Daytona Beach, FL; the Honorable Chris W. Altenbernd, Second District Court of Appeal, Tampa, FL, on behalf of the Ad hoc Committee on Judicial Pro Bono for the Conference of District Court of Appeal Judges; the Honorable Jeffrey D. Swartz, County Court Judge, Dade County, Miami Beach, FL; Tod Aronovitz, President, The Florida Bar, Miami, FL, and Miles A. McGrane, III, Presidentelect, The Florida Bar, Coral Gables, FL; the Honorable David A. Demers, Chief Judge, Sixth Judicial Circuit, and B. Elaine New, Court Counsel, Sixth Judicial Circuit, St. Petersburg, FL; The Honorable William A. Van Nortwick, Jr., Chair, Task Force on Pro Bono Activities by Judges and Judicial Staff, Tallahassee, FL; the Honorable Jeffrey J. Colbath, County Court Judge, Palm Beach County, West Palm Beach, FL; and the Honorable Karl B. Grube, County Court Judge, Pinellas County, St. Petersburg, FL, Responding with comments in No. SC02-147.
The Honorable William A. Van Nortwick, Jr., Chair, Task Force on Pro Bono Activities by Judges and Judicial Staff, Tallahassee, FL; and Natasha W. Permaul, Chair, The Florida Bar Standing Committee on Pro Bono Legal Services, Orlando, FL, for Petitioner in No. SC02-1034.
The Honorable Joseph P. Farina, Chief Judge, Eleventh Judicial Circuit, Former Chair, Florida Conference of Circuit Court Judges, Miami, FL; the Honorable Belvin Perry, Jr., Conference Chair, Florida Conference of Circuit Court Judges, Orlando, FL; the Honorable Beth Bloom, President, Florida Conference of County Court Judges, Miami, FL; the Honorable Charles J. Kahn, Jr., First District Court of Appeal, Tallahassee, FL, and Ervin Gonzalez of Colson, Hicks & Eidson, Coral Gables, FL, on behalf of the Florida Judicial Ethics Advisory Committee; the Honorable Jacqueline R. Griffin, Chair, Ad hoc Committee on Judicial Pro Bono for the Conference of District Court of Appeal Judges, Daytona Beach, FL; the Honorable Chris W. Altenbernd, Second District Court of Appeal, Tampa, FL, on behalf of the Ad hoc Committee on Judicial Pro Bono for the Conference of District Court of Appeal Judges; the Honorable Jeffrey D. Swartz, County Court Judge, Dade County, Miami Beach, FL; Tod Aronovitz, President, The Florida Bar, Miami, FL, and Miles A. McGrane, III, Presidentelect, The Florida Bar, Coral Gables, FL; the Honorable David A. Demers, Chief Judge, Sixth Judicial Circuit, and B. Elaine New, Court Counsel, Sixth Judicial Circuit, St. Petersburg, FL; the Honorable James M. Barton, III, Circuit Court Judge of the Thirteenth Judicial Circuit, Hillsborough County, Tampa, FL; John R. Hamilton of Foley & Lardner, Orlando, FL, on behalf of the Legal Aid Society of the Orange County Bar Association, Inc.; Kelly Rauch, President, Florida Pro Bono Coordinators Association, St. Petersburg, FL; Wendy S. Loquasto, career attorney to Judge Richard W. Ervin, III, Judge of the District Court of Appeal, First District, Tallahassee, FL; and attorney Martin D. Kahn, Miami, FL, Responding with comments in No. SC02-1034.
In Case No. SC02-147, we have before us the petition of the Judicial Ethics Advisory Committee (JEAC) proposing amendments to Canons 4 and 5 of the Code of Judicial Conduct (Code). In Case No. SC02-1034, we have before us the report of the Task Force on Pro Bono Activities by Judges and Judicial Staff (Task Force) and The Florida Bar Standing Committee on Pro Bono Legal Services (Standing Committee), proposing amendments to Canon 4 of the Code and to Rule Regulating the Florida Bar 4-6.1, Pro Bono Public Service. We have jurisdiction. See art. V, § 15, Fla. Const. Although the petition of the JEAC is broader in scope, because both the petition and the report of the Task Force and the Standing Committee relate to the provision of pro bono services by judges and judicial staff, we consolidated the two matters for oral argument and now consolidate the cases for purposes of this opinion. After considering the report, the petition, and the comments filed in response to each, and after hearing oral argument, we adopt the amendments proposed by the JEAC and decline to adopt the amendments proposed by the Task Force and the Standing Committee.
In 1993, this Court adopted a comprehensive pro bono legal service plan for Florida attorneys. See Amendments to Rules Regulating the Florida Bar—1-3.1(a) & Rules of Judicial Administration—2.065 (Legal Aid), 630 So.2d 501 (Fla.1993) (hereinafter Amendments ). At that time, this Court noted that it has a constitutional responsibility to ensure access to the justice system. However, the Court expressly found that "no authority exists for this Court to address, through the Rules Regulating The Florida Bar, uncompensated public service activities not directly related to services for the courts and the legal needs of the poor." Id. at 503. The Court narrowly defined the term "legal services to the poor" as "pro bono legal services to the poor or ... to the extent possible, other pro bono service activities that directly relate to the legal needs of the poor." Id.
In considering whether the aspirational goal of the provision regarding pro bono legal services to the poor should apply to judges and their staff attorneys, this Court recognized that judicial officers and their staffs are prohibited from practicing law. Id. The Court explained:
These prohibitions are designed partially to prevent judges and their staffs from taking time away from their judicial duties. More importantly, however, the prohibitions are to prevent them from placing themselves in positions where their actions could directly or indirectly be influenced by matters that could come before them or could provide the appearance that certain parties might be favored over others. As a result, members of the judiciary and their law clerks are unable to participate in providing pro bono legal services to the poor absent a broadening of the definition of those services to such an extent that the services would no longer be limited to legal services. As discussed above under the definition of legal services, we believe that a narrow definition of pro bono services is necessary to ensure that the purposes behind the implementation of these rules are in accordance with our authority.
Id. at 503-04. Thus, the Court deferred members of the judiciary and their staffs from the pro bono requirements of rule 4-6.1. See id. at 504. Nevertheless, the Court went on to note:
[J]udges and their staffs may still teach or engage in activities that concern nonadversarial aspects of the law. Canon 4. Although those activities would not be governed by these rules, we strongly encourage the participation of the judiciary in those activities and request the judicial conferences to consider appropriate means to provide support and allow participation of judges and law clerks in pro bono activities.
These consolidated cases consist of the recommendations of two separate groups considering the same issue that was addressed by this Court in Amendments, that is, the participation of judges and judicial staff attorneys in pro bono activities. We will discuss the origins of both the JEAC and the Task Force in turn, and address the recommendations filed by each group.
The Judicial Ethics Advisory Committee, formerly called the Committee on Standards of Conduct Governing Judges, was created in 1976. See Petition of Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).1 The stated purpose of the JEAC was, and is, to render written advisory opinions to inquiring judges concerning the propriety of contemplated judicial and nonjudicial conduct. See Petition of Committee on Standards of Conduct for Judges, 327 So.2d at 5. In 1979, the Court held that the JEAC also could recommend changes to the Code of Judicial Conduct. See Petition of Committee on Standards of Conduct for Judges, 367 So.2d 625, 626 (Fla.1979).
On January 22, 2002, the JEAC filed a petition requesting that the Court adopt proposed revisions to Canons 4 and 5 of the Code of Judicial Conduct. The JEAC proposes amendments to the heading, the substance, and the comment to Canon 4, "A Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice." In proposing these amendments, the JEAC states that it recognizes that it is important for members of the judiciary to participate in activities that improve the law, the legal system, and the administration of justice. However, the JEAC states that Canon 4 is deficient because it fails to encourage judicial officers to improve upon the system that they serve. Further, the JEAC states that some judges are unclear as to the activities in which they may ethically engage. As currently written, the heading to Canon 4 states only that judges are permitted to engage in activities...
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