A Cautious “Yes”

The most recent opinion from the Florida Judicial Ethics Advisory Committee

May a judicial candidate use or re-publish a news media report on the opponent’s admittedly inappropriate relationship with a legal client, which occurred during the representation?

ANSWER: Generally, it would not be a per se violation of the Code of Judicial Conduct to use or re-publish negative or critical news reports or articles on the opponent, so long as the mandates of Canon 7 are followed.

The inquirer is a judicial candidate. The news media has published reports that an opponent had, several years ago, been involved in an inappropriate and unprofessional relationship with one of the opponent’s then-current legal clients.  The opponent has reportedly confirmed that the inappropriate relationship existed. The inquirer wishes to use or re-publish these reports during the campaign and asks if this is permissible.  

The Judicial Ethics Advisory Committee has previously dealt with the issue presented herein: may a candidate use or reproduce negative or critical reports on opponents in their advertisements or campaign communications.  We have consistently opined that we will not vet candidates’ advertisements.  Among other reasons, we have ascribed to that position because we have no way of discerning or verifying whether the facts alleged are accurate.  Our opinions, therefore, have generally set out the guidelines which Canon 7 mandates must be followed, in order for the candidates’ communications and ads to not violate the Code.  In Fla. JEAC Op. 98-27 we opined:

“It would not be a violation per se of the Code for a judicial candidate to reproduce negative articles about the candidate’s opponents, but the candidate must follow the mandates of Canon 7. This Committee’s Opinions in 94-16 and 94-35 are instructive. In Opinion 94-16, the Committee stated: ‘The code does not directly address what is ethically acceptable when a candidate wishes to criticize a political opponent. Our Committee finds that in general it would be proper to criticize a political opponent when the criticism is truthful, pertinent and material to judicial office …’”

In Fla. JEAC Op. 02-13 the Committee, after acknowledging 98-27 as precedent, further stated:

“a candidate may criticize an opponent if it is fair and truthful; is pertinent and material to the judicial office; is based on factual, not personal, grounds; is not about a pending case; and does not bring the candidate’s impartiality or that of the judiciary into question…Canon 7A(3)(d)(iii) [now Canon 7A(3)(e)(ii)]…”

Therefore, the inquirer is cautioned to follow the mandates of Canon 7 in re-publishing and using the media reports.

(Mike Frisch)