No Speaking Objection

Whether a judge may speak to an association of state prosecutors regarding how to address issues that arise when dealing with a specific type of litigant.

ANSWER:  Yes, so long as the judge complies with Canon 2A.

The inquiring judge has been invited to speak to an out-of-jurisdiction association of state prosecutors.  The topic concerns a very specific class of litigants and how judges can deal with the issues that arise when they encounter these litigants in court.  The inquiring judge has lectured on this topic to judges across the country, but is concerned with whether the Florida Code of Judicial Conduct prohibits addressing a group consisting solely of prosecutors.

Judges are explicitly “encouraged to speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, the administration of justice.”  Fla. Code Jud. Conduct, Canon 4B.  As a result, this Committee has advised judges that they may teach lawyers and nonlawyers about a range of topics in a variety of settings.  These have included:

• • Writing columns on legal issues and the judicial system.  See Fla. JEAC Op. (may write a short monthly column in the local newspaper on the judicial system in his county); Fla. JEAC Op. (judge may write a biweekly column concerning the issue of attorney’s fees in the Daily Business Review). 
     
  • Speaking to community groups about legal issues.  See Fla. JEAC Op. (judge may speak to various community groups, including parent/teacher organizations, regarding the dangers of online predators); Fla. JEAC Op. (judge may lecture to a group of non-attorneys who are interested in landlord-tenant law).  
     
  • Teaching law courses.  See Fla. JEAC Op. (judge may teach a church law course at an accredited religious university); Fla. JEAC Op. (judge may teach a graduate seminar in juvenile justice and family law); Fla. JEAC Op. 1976-21 (judge may teach criminal justice at a community college).
     
  • Participating in panel discussions about legal issues that arise in the criminal justice system. See Fla. JEAC Op. (judge may serve as keynote speaker for a non-partisan victims’ rights event presented by the district’s state attorney’s office, police departments, county sheriff’s office and victims’ shelter); Fla. JEAC Op. 06-17 (judge may participate in a panel discussion sponsored by Mothers Against Drunk Driving on the problem of underage drinking);  Fla. JEAC Op. (judge may participate in a panel discussion regarding  the issue of human trafficking).
     
  • Training participants in the judicial system.  See Fla. JEAC Op. (judge can teach at a training session for judges, magistrates, and court staff on how to deal with domestic violence issues); Fla. JEAC Op. (judge who presides over criminal cases may make a presentation about the criminal justice system, including about courtroom procedures and etiquette, to doctors and investigators at the local Medical Examiner’s office); Fla. JEAC Op. (judge may lecture at a legal seminar sponsored by the Academy of Florida Trial Lawyers).
     
  • Training law enforcement officers.  See Fla. JEAC Op. (judge may educate federal law enforcement officers on False Claims Act issues); Fla. JEAC Op. (judge may teach at the police academy).

These opinions all point in the same direction.  So long as the judge complies with Canon 2A (“A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”), the Code does not prohibit a judge from teaching a homogenous group about the law. We acknowledge, however, that 2008-21 creates some doubt because the Committee, opining on the propriety of a judge teaching an educational/trial skills course at a Dependency Court Improvement Summit sponsored by the Department of Children and Families, stated that

the judge should ensure that the course is intended to provide an educational benefit for all attendees.  The course should not be designed or taught in a manner that would appear to constitute a training session for DCF attorneys.  To tailor the course solely for the benefit of DCF attorneys would tend to cast reasonable doubt on the judge’s capacity to act impartially as a judge.

Id.  We recede from this opinion to the extent that it implies that a judge cannot teach a seminar for a homogenous audience.  Such a conclusion would contradict other opinions we have cited in this opinion.

Of course, as we have repeatedly stressed, “the inquiring judge [must] be careful not to comment on pending cases, not to answer hypothetical questions in a way that appears to commit to a particular position, and not to make any other remarks that could lead to disqualification or be construed as an indication as to how the judge would rule in a particular case.”  Fla. JEAC Op. .  In addition, in 2019-02 we provided a list of “factors for a judge to consider when deciding whether to engage in an extrajudicial or quasi-judicial activity with or without compensation.”  We explained that “[i]f the answer to any one of the following eight questions is yes, then it is recommended the judge decline to engage in the activity.”  The eight factors are:

1. Whether the activity will detract from full time duties;

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;

3. Whether the activity will appear to trade on judicial office for the judge’s personal advantage;

4. Whether the activity will appear to place the judge in a position to wield or succumb to undue influence in judicial matters;

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;

6. Whether the activity will create any other conflict of interest for the judge;

7. Whether the activity will cause an entanglement with an entity or enterprise that appears frequently before the court; and

8. Whether the activity will lack dignity or demean judicial office in any way.

So long as the inquiring judge complies with these guidelines, we see no reason why the inquiring judge cannot speak to a prosecutor’s association.

(Mike Frisch)