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, andauthorize the Sedona Conference to include the judge’s name in theendorsements section.  The judge also wishes to promote, distribute,and speak at bar association meetings in support of the proclamationand its principles. The judge hopes that endorsement of the CooperationProclamation in these ways will assist in improving the quality of thepractice of law in the state of Florida.  The inquiring judge requestsan advisory opinion as to whether such actions are permitted by theFlorida Code of Judicial Conduct.

The conclusion:

The Committee is of the opinion that endorsement of the CooperationProclamation in the manner described by the inquiring judge is aquasi-judicial activity concerning the law, the legal system, and theadministration of justice, which is encouraged by the Code of JudicialConduct.

   Other JEAC opinions support this conclusion.  See Fla. JEAC Op. 98-31(opining that judge may be a member of a voluntary bar association thatjoins a political action committee to support a proposed constitutionalamendment); Fla. JEAC Op. 98-14(opining that judge may advocate a position on proposed constitutionalamendments 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 fromexpressing personal views in public regarding proposed constitutionalamendments); Fla. JEAC Op. 76-16(opining that judge’s efforts to educate the general public about aconstitutional 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 anappropriate forum may express his protest, dissent, and criticism ofthe present state of the law as long as he does not appear tosubstitute his concept of what the law ought to be for what the lawactually is, and as long as he expresses himself in a manner thatpromotes public confidence in his integrity and impartiality as ajudge.”)

The Committee reminds the judge,  however, that while suchquasi-judicial activities are encouraged by Canon 4B, they are alsosubject to other provisions of the Code of Judicial Conduct.  Forexample, a judge “shall not personally or directly participate in thesolicitation of funds,” or engage in activities that “cast reasonabledoubt on his or her capacity to act impartially as a judge” or “lead tofrequent disqualification of a judge.” See Canons 4D(2)(a)and 4A(1). Accordingly, as was  recommended by the Committee on Codesof Conduct of the Judicial Conference of the United States, thisCommittee also recommends that the judge retain some measure of controlover the use of the judge’s endorsement, including the right to vetoinappropriate use of the endorsement.

(Mike Frisch)