JUDICIAL ETHICS 2024 Florida Judicial College Phase 1 January 2024

JUDICIAL ETHICS 2024 Florida Judicial College Phase 1 January 2024 Honorable Kathleen J. Kroll – [email protected] Blan L. Teagle – [email protected] 1

Learning Objectives 1. Identify common problems arising under the Code of Judicial Conduct. 2. Solve common problems arising under the Code of Judicial Conduct. 3. Develop strategies for avoiding common problems arising under the Code of Judicial Conduct. 4. Identify available resources to determine whether contemplated conduct is ethical. 2

Disclaimer Judge Kroll and Mr. Teagle speak only for themselves and do not and cannot speak on behalf of the Judicial Ethics Advisor Committee (JEAC), the Judicial Qualifications Commission (JQC), or the Florida Supreme Court. We provide general educational content, but not a substitute for each judge’s own analysis. We provide you an analytical framework today so you can draw your own conclusions. When we say the answer is “yes” or “no”, that response is based on our review of the authoritative and persuasive resources. 3

Resources to Consult for Answers to Judicial Ethics Questions Florida Code of Judicial Conduct FL Courts References and Resources Judicial Ethics Advisory Committee Judicial Ethics Advisory Committee (JEAC) Opinions Judicial Ethics Benchguide: Answers to Frequently Asked Questions An Aid to Understanding Canon 7 Ethics Hotline 800-235-8619 (will not interpret the Code or answer judicial ethics questions, but will answer questions about a magistrate or hearing officer’s own conduct as a lawyer that involve Rules Regulating The Florida Bar). Your Mentor And when in doubt, it is always advisable to pose a question to the Chair of the Judicial Ethics Advisory Committee ([email protected]) 4

Opinions of the Judicial Ethics Advisory Committee Website: supremecourt.flcourts.gov/opinions/Judicial-EthicsAdvisory-Committee How to find JEAC Opinions on the website: Click on the year(s) to find the corresponding opinion. How to search JEAC Opinions on the website: To conduct a search on a particular topic, click on the subjects located under the “Locate Opinions By Subject” heading. Examples includes “Disclosure/Recusal/Disqualification. Mobile Site: mobile.flcourts.org/jeac/index.html 5

How the Code of Judicial Conduct Applies to Child Support Hearing Officers and Magistrates The Application to the Code of Judicial Conduct specifies that: “Anyone whether or not a lawyer, who performs judicial functions, including but not limited to a civil traffic hearing officer shall, while performing judicial functions, conform with Canons 1, 2A, and 3, and such other provisions of this Code that might reasonably be applicable depending on the nature of the judicial function performed.” 6

Rules of the Game Each Team has a name and color. Decide as a team the answer to each section of the problem set. You must commit to “yes” or “no”. Choose one person to be the team reporter. – Reporter uses Team color “Post It” to vote. Green is “yes, you can.” Red is “no, you can’t.” – Reporter provides a synopsis of reasoning if asked by faculty to do so. You have a set time on each problem. When we yell “stop”, the reporter must go vote. We will then discuss the answers and record team points. 7

Problem Set 1 Gifts 8

Problem Set 1 Gifts 1-1. You are a new judge and you are planning your investiture. Everyone adores you. Several former clients, close friends, colleagues, your old law firm and the local bar association all want to mark your investiture. The local bar association wants to purchase a robe for you. The former law firm wants to purchase a ceremonial gavel for you. Others want to purchase a clock, a chair, and some lawyers, family, and friends just want to write you a check or provide you with a gift certificate. Your old law firm wants to sponsor and pay for all the expenses for a reception following your investiture. May you accept these gifts? 1-2. You have been on the bench for about a year. One of the things you have noticed is that during the holiday season, several of the local law firms have practice of dropping off gift baskets and home-baked goods to the judicial assistants in the courthouse, including your JA. They express their appreciation for the service and hard work. None of these gifts are worth more than 20 or 30. Is it okay to keep them? 1-3. You get invited to lots of bar related functions and activities. Sometimes you are asked to speak about the law, the legal system, and the administration of justice. Recently, after you make one of these presentations, the organizers gave you a beautiful autographed copy of Judge Padovano’s hornbook on appellate procedures. Its purchase price would be about 225. Is it okay to keep the book? 1-4. You’re married to someone who is even more of a legal scholar than you are, and they have been invited to speak on international law on an Icelandic cruise. Your spouse will have to do a lot of preparation for this and give about an hour and a half presentation. There is no pay, but the sponsor is offering to cover all expenses for both you and your spouse, the value of the trip is about 10,000. The invitation simply says, “you and a guest.” May you accompany your spouse? 9

1-1. You are a new judge, and you are planning your investiture. Everyone adores you. Several former clients, close friends, colleagues, your old law firm and the local bar association all want to mark your investiture. The local bar association wants to purchase a robe for you. The former law firm wants to purchase a ceremonial gavel for you. Others want to purchase a clock, a chair, and some lawyers, family, and friends just want to write you a check or provide you with a gift certificate. Your old law firm wants to sponsor and pay for all the expenses for a reception following your investiture. May you accept these gifts? 10

1-1. Gifts Yes, it is probably okay to keep them. Read 5D(5) and 6A together. You can generally accept gifts from former law partners, close personal friends, colleagues or bar associations to mark your investiture or retirement. Because: Gift will likely necessitate recusal from matters involving the gift-giver, but in most instances, the donor is likely to be someone whose appearance in a case before you would necessitate recusal even without the gift. Or it is a group like the bar association. Florida Opinions on point are: Op. 76-22 (gavel from state attorney who is former employer ok) 11

1-2. You have been on the bench for about a year. One of the things you have noticed is that during the holiday season, several of the local law firms have a practice of dropping off gift baskets and home-baked goods to the judicial assistants in the courthouse, including your JA. They express their appreciation for the service and hard work. None of these gifts are worth more than 20 or 30. Is it okay to keep them? 12

1-2. Gifts No. Read 5D(5) and 3C(2) together. 3C(2) requires that staff, court officials, and others subject to your control must observe standards of fidelity and diligence that pertain to you. Burden is imposed on you. Florida opinion on point is: Op. 00-08 (judge is ethically obligated to instruct applicable court employees to act in manner consistent with judge’s ethical duties and obligations regarding gift acceptance). 13

1-3. You get invited to lots of bar-related functions and activities. Sometimes you are asked to speak about the law, the legal system, and the administration of justice. Recently, after you make one of these presentations, the organizers gave you a beautiful autographed copy of Judge Padovano’s hornbook on appellate procedures. Its purchase price would be about 225. Is it okay to keep the book? 14

1-3. Gifts Probably, Yes. Read 5D(5)(a), 5D(5)(h), 6A, 6A(3), and 6B(2). Ok to accept small gifts from bar associations and educational organizations given as a token of appreciation for presentation. Do report! In fact, you can even be reasonably compensated for extrajudicial activities permitted by the Code, provided payment does not give appearance of influencing judicial duties or appearance of impropriety. Florida opinion on point is: Op. 18-07 Op. 07-09 Op. 07-15 15

1-4. You’re married to someone who is even more of a legal scholar than you are, and they have been invited to speak on international law on an Icelandic cruise. Your spouse will have to do a lot of preparation for this and give about an hour and a half presentation. There is no pay, but the sponsor is offering to cover all expenses for both you and your spouse, the value of the trip is about 10,000. The invitation simply says, “you and a guest.” May you accompany your spouse? 16

1-4. Gifts Judge should not accept free passage on cruise ship in exchange for lecture; activity detracts from dignity of office and exploits position. Judge may accompany spouse to conference where spouse is featured speaker, and all costs are paid by sponsor. Gift must be reported in conformity with Canon 6 Requirements. Florida opinions on point include: Op. 92-07 Op. 89-09 Op. 21-12 17

Take Away Slide for Gifts 1. Is it a gift? Not a loan/scholarship/legal contribution for an act you performed? 2. Who is giving it? 1. Is it from a relative/close personal friend? On your disqualify list? 2. Normal hospitality? 3. What is the context? 4. Is it fairly commensurate with the occasion or relationship? 5. Value over 100? - - THEN REPORT (Canon 6B(2)) 1. Op. 22-06 – Duty to Inquire as to Value When in doubt REPORT. 18

Problem Set 2 Social Media 19

Problem Set 2 Social Media 2-1. You grew up in Tallahassee, Florida and you are a circuit judge there. You recently decided to come into the 21st-century and open a Meta social media page. What prompted you to do it was your recent experience at your 25th high school reunion. After the reunion, you made the decision to finally get on social media because many of your high school classmates were posting comments and photographs of the reunion and you wanted to see them. Some of your classmates are lawyers who appeared before you. May you be “Meta friends” with these former high school classmates who are now lawyers who routinely practice in front of you? 2-2. Defendant was arrested on felony charges of financial exploitation of the elderly. Local media was present for and filmed the arraignment. Later that same day, a television station ran a story on the defendant. Judge prominently appeared throughout the news story. At some point later that day, you posted a still photo of the video on your Meta account showing you seated in court conducting the initial appearance for Defendant. The caption underneath the photo read “Police: Woman Exploits Over One Million Dollars from Dying Mom.” Your Meta post elicited several negative posts from members of the public including but not limited to “disgusting,” “hang’em high Judge”, “hopefully you set a high bond,” and “I didn’t think anything could be lower than rescinding DACA. I was wrong.” The comments also included statements of support for your handling of the arraignment such as “go Judge” and “get’em Judge” and “Good one.” Is it permissible for you to post the photo? 2-3. You sent a “Meta” friend request to the petitioner in a marriage dissolution case that you have before you right now. Was that OK? 2-4. You are an appointed judge who must run in the next election. You have opened a campaign account and are currently collecting endorsement cards. You want to set up on your Meta page information associated with your reelection campaign. You will not ask for contributions or do fundraising though the Meta page. All you want to do is put on the Meta page a request for individuals to sign petitions that would permit you to qualify without paying the qualifying fee otherwise required by law. The Meta page specifically indicates that all funds should be sent to your Campaign committee. Is this OK? 20

2-1. You grew up in Tallahassee, Florida and you are a circuit judge there. You recently decided to come into the 21st-century and open a ‘Meta’ page. What prompted you to do it was your recent experience at your 25th high school reunion. After the reunion, you made the decision to finally get on social media because many of your high school classmates were posting comments and photographs of the reunion on ‘Meta’, and you wanted to see them. Some of your classmates are lawyers who appeared before you. May you be ‘Meta friends’ with these former high school classmates who are now lawyers who routinely practice in front 21

2-1. Social Media Yes, you may be “friends” with former classmates including lawyers who appear before you. But ask yourself if they are “actual” friends. In Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Association, 271 So.3d 889, (Fla. 2018) the Florida Supreme Court held : “an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.” 22

2-2. Defendant was arrested on felony charges of financial exploitation of the elderly. Local media was present for and filmed the arraignment. Later that same day, a television station ran a story on the defendant. Judge prominently appeared throughout the news story. At some point later that day, you posted a still photo of the video on your Meta account showing you seated in court conducting the initial appearance for Defendant. The caption underneath the photo read “Police: Woman Exploits Over One Million Dollars from Dying Mom.” Your Meta post elicited several negative posts from members of the public including but not limited to “disgusting,” “hang’em high Judge”, “hopefully you set a high bond,” and “I didn’t think anything could be lower than rescinding DACA. I was wrong.” The comments also included statements of support for your handling of the arraignment, such as “go Judge” and “get’em Judge” 23

2-2. Social Media Probably No. By placing the still photo on your Meta page, you expressed to your Meta “friends” the woman’s perceived guilt in a louder voice, and in a more certain tone then if you had actually written the words yourself. In a W. Va case, “The post was also designed to elicit responses from “friends” because that’s what a Meta account is meant to be – an alternative public means of communication. The fact that the friends’ comments were largely negative is no surprise, and Respondent’s failure to remove them constituted a tacit endorsement of the same. By engaging in such conduct, Respondent also clearly called into question the integrity and independency of the judiciary.” 24

2-3. You sent a “Meta” friend request to the petitioner in a marriage dissolution case that you have before you right now. Was that OK? 25

2-3. Social Media Not a good idea! Chace v. Loisel, 170 So. 3d 802 (Fla. 5th DCA 2014). 26

2-4. You are an appointed judge who must run in the next election. You have opened a campaign account and are currently collecting endorsement cards. You want to set up on your social media page information associated with your reelection campaign. You will not ask for contributions or do fundraising through the page. All you want to do is put on the page a request for individuals to sign petitions that would permit you to qualify without paying the qualifying fee otherwise required by law. The page specifically indicates that all funds should be sent to your Campaign committee. Is this OK? 27

2-4. Social Media No, you cannot make the request, but your committee can. Op. 17-24 (Election) (judicial candidate may not establish open Facebook page to ask individuals to sign petitions for candidate to qualify to run without paying qualifying fee, but committee of responsible persons may, as long it is clear that Facebook page is not maintained by candidate personally). Op. 18-04 chose not to recede from 17-24, because inquirer was not soliciting funds from anyone and was not soliciting support from attorneys. 28

Take Away Slide for Social Media Canons 2, 3, 4, and 5 No “friendships” with lawyers on social media? Exercise caution when engaging in electronic communication of any kind, period. Consider the accessibility, ease of widespread transmission by others, and the permanence. You lose control over the use and dissemination of your communications. But, the rule with respect to governing this conduct are really the same relevant rules that have been in place for a very long time, predicated on the same main principles. Ask yourself questions such as, but not limited to these 5: 1. Lending prestige of office? (2B(2)) Conveying or permitting others to convey impression they are in special position to influence you? 2. Ex Parte communications (3B(7)) 3. Public comment on pending or impending matters? (3B(9)) 4. Conducting extra – judicial activities so as not to cast doubt on impartiality, demean the office, or frequently have to disqualify? 5A(1)-(6) & 5A(1)-(6) Bottom line: You may participate in social networking sites. As of November 15, 2018: “an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.” Herssein v. USAA, --- So. 3d ---, 2018 WL599423 (Fla.218) 29

Some other things to consider: 1. Nature of the site 2. Number of “friends” 3. Your practice in determining whom to include and how to manage your settings. Page 6 & 12 in Florida Bar Journal, Vol. 98, #4 (July/August 2019) 30

Problem Set 3 Letter of Recommendation 31

Problem Set 3 Letter of Recommendation 3-1. You have an old law school roommate who lives in another circuit. You have kept in touch over the years and you have some passing acquaintances with the friend’s family. The friend’s child just graduated from college and has applied to law school. The friend has asked you to write a letter of recommendation on the child’s behalf. The child seems like a nice kid and you have definitely been around this family in some social settings over the years, and you, of course, have the child’s list of various high school and college accomplishments. Is it OK for you to write this letter on personal letterhead? 3-2. The friend’s child has graduated from law school and is in the process of seeking admission to the Florida Bar. She asks you to write a recommendation. May you voluntarily write a letter to the Florida Board of bar Examiners commenting on the character and fitness of the applicant for membership in The Florida bar? 3-3. You have a close, personal friend who has asked you to write a letter of recommendation in support of the friend’s application for a real estate license. In the distant past, the friend had a misdemeanor arrest and conviction. The purpose of your letter is to serve as additional information attesting to the friend’s honesty, trustworthiness, current good character, and good reputation in the community. May you do this? 3-4. May you provide a character reference letter on your official letterhead on behalf of a criminal defendant awaiting sentencing in federal court? 32

3-1. You have an old law school roommate who lives in another circuit. You have kept in touch over the years, and you have some passing acquaintances with the friend’s family. The friend’s child just graduated from college and has applied to law school. The friend has asked you to write a letter of recommendation on the child’s behalf. The child seems like a nice kid, and you have definitely been around this family in some social settings over the years, and you, of course, have the child’s list of various high school and college accomplishments. Is it OK for you to write this letter on personal letterhead? 33

3-1. Letters of Recommendation No. Not unless you have: Actual knowledge; AND Communicate relevant factual information regarding character, knowledge, skills, and ability; AND No connection to investigation or adjudication where rights, duties, privileges, or immunities decided. 34

3-2. The friend’s child has graduated from law school and is in the process of seeking admission to the Florida Bar. She asks you to write a recommendation. May you voluntarily write a letter to the Florida Board of bar Examiners commenting on the character and fitness of the applicant for membership in The Florida bar? 35

3-2. Letters of Recommendation No. It is never appropriate for you to write to FBBE. Op. 18-10 36

3-3. You have a close, personal friend who has asked you to write a letter of recommendation in support of the friend’s application for a real estate license. In the distant past, the friend had a misdemeanor arrest and conviction. The purpose of your letter is to serve as additional information attesting to the friend’s honesty, trustworthiness, current good character, and good reputation in the community. May you do this? 37

3-3. Letters of Recommendation No, you may not write a letter of recommendation in support of a friend’s application for a real estate license where friend had criminal conviction. Op. 13-08 38

3-4. May you provide a character reference letter on your official letterhead on behalf of a criminal defendant awaiting sentencing in federal court? 39

3-4. Letters of Recommendation No, you may not provide a character reference letter on official letterhead on behalf of a criminal defendant awaiting sentencing in federal court. In re White-Labora, 257 So. 3d 367, (Fla. 2018) In re Fogan, 646 So. 2d 191 (Fla. 1994) In re Able, 632 So. 2d 600 (Fla. 1994) Op. 10-34 Op. 97-03 40

Take Away Slide for Letter of Recommendation Canon 2B You can write it if: It is a letter of recommendation for admission to an educational institution or to a prospective employer; AND You know them and have actual knowledge and communication factual information regarding character, knowledge, skill, and ability relevant to the job in question or relevant to professional competency generally; AND This letter is not in any way connected to investigatory or adjudicatory proceedings where rights, duties, privileges, or immunities will be decided. Op. 07-06 Op. 08-24 Op. 17-09 Op. 13-08 Op. 18-10 Op. 19-23 Note: If you can do it, you can use letterhead. 41

Problem Set 4 Quasi-Extra-Judicial Activity 42

Problem Set 4 Quasi-Extra-Judicial Activity 4-1. You wish to enter into a contractual arrangement with a local television station. Under this arrangement you would, for compensation, appear on various segments to “comment about, explain to, and educate this public concerning diverse legal matters including explaining and clarifying the proceedings during high publicity trials.” Such a news forum is a great public service, as it would educate the public and explain the procedures and working of the court system. May you do this and accept compensation for such “public service?” 4-2. During your high school years, you attended an elite South Florida prep/boarding school. The school has now invited you to participate in a video profile series featuring prominent alumni, a sort of “grad-made-good” series that is designed to inspire young people and their parents to seek out inspirational, formative education as a foundation for higher education and meaningful, productive careers. The three-minute video will feature you discussing the many ways your prep academy education helped you set goals, aspire to a career, and achieve the success you have attained at the highest level. The videos will appear on the school’s website and social media outlets. There will also be a still photograph of you, along with other distinguished alumni, on display in the foyer of the administration building near the trophy cases. The headmaster and development director have informed you that the videos are used for “general campus promotion,” but not for any currently planned direct fundraising initiatives. May you participate in the three-minute video shoot to be used in the manner described above? 43

4-1. You wish to enter into a contractual arrangement with a local television station. Under this arrangement you would, for compensation, appear on various segments to “comment about, explain to, and educate this public concerning diverse legal mattes, including explaining and clarifying the proceedings during high publicity trials.” Such a news forum is a great public service, as it would educate the public and explain the procedures and working of the court system. May you do this and accept compensation for such “public service”? 44

4-1. Quasi-Extra-Judicial Activity No. Not for free and not for money, says Op. 96-25. Analysis involves interplay of at least six references spanning four Canons: 2B (shall not lend prestige of office to advance private interest of judge or others); 3A (judicial activities take precedence); 3B(8) (dispose of matters promptly and fairly); 3B(9) (make no comments while proceeding pending or impending in any court that might be reasonably expected to affects its outcome or impair its fairness); 4A(1) – (6); 5A(1) – (6). See Op. 2020-21 for JEAC recent thoughts on publications as opposed to broadcast media. See Op. 2021-10 and Op. 2021-14 for JEAC recent thoughts on broadcasts and podcasts. 45

4-2. During your high school years, you attended an elite South Florida prep/boarding school. The school has now invited you to participate in a video profile series featuring prominent alumni, a sort of “grad-made-good” series that is designed to inspire young people and their parents to seek out inspirational, formative education as a foundation for higher education and meaningful, productive careers. The three-minute video will feature you discussing the many ways your prep academy education helped you set goals, aspire to a career, and achieve the success you have attained at the highest level. The videos will appear on the school’s website and social media outlets. There will also be a still photograph of you, along with other distinguished alumni, on display in the foyer of the administration building near the trophy cases. The headmaster and development director have informed you that the videos are used for “general campus promotion,” but not for any currently planned direct fundraising initiatives. 46

4-2. Extra-Judicial Behavior Probably not. Canon 5A (“shall conduct activities so as not to (2) undermine Integrity (3) demean the judicial office. Canon 5C (3) (b)(iii) (you may serve as “officer, director, trustee, or non-legal advisor of educational organization not conducted for profit “ BUT as with Canon 2B, “. shall not permit use of prestige of judicial office for fundraising or membership solicitation.“) Opinions Op. 78–9 (OK to be a member of FSU Alumni Association and authorize your name and photograph to be used “to assist Association in promoting memberships.“ But, name and photo NOT OK to use for solicitation of funds. In this opinion, membership funds were used to “expand programs, and “activate new clubs“ But not solicit funds or solicit new members) Op. 97-28 (Judge allowed to authorize college alma mater to feature him in ad campaign, not used to generate funding, but which profiled successful alumni “To inspire others to consider higher education.“ So, it seems to be construed as merely a PSA.) MA Op. 2017–02 (college video profile series. Op advised Judge not to participate. Distinguished permissible booklet that included photos and bio sketches of alumni because booklet placed ‘facts before the public.’ Booklet might “invite inferences favorable to the University” but that was different from advert presenting to public an endorsement deriving “impact from the judicial office.”) 47

Take Away Slide(s) Quasi-Extra-Judicial Activity Quasi-Judicial Activities 1. Is the organization or governmental entity devoted to the improvement of the law, the legal system, the Judicial Branch, or the administration of justice? 2. Will the organization be engaged in proceedings that will come before a judge, or will it be engaged in frequent adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member? 3. Will membership cast reasonable doubt on impartiality; will it undermine integrity, independency, or impartiality; will it demean the judicial office; will it interfere with the proper performance of judicial duties; will it lead to frequent disqualification; will it appear to a reasonable person to be coercive? 4. Is the organization involved in fund-raising of any sort, and will the judge be called upon to participate in soliciting funds for the support of the organization? 5. Are the nature and purpose of the organization changing; is it advocating new positions; are its membership rules changing; has it begun to appear in legal proceedings? 48

Extrajudicial Activities 1. What is the purpose of the organization? (If organization is not specifically devoted to improving the law, legal system, or administration of justice, then membership governed primarily by Cannon 5 read with Canon 2A in mind. Because canon 2A requires a judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, judge must be vigilantly attuned to mission, purpose, goals, objectives, and activities of nay organization in which judge holds membership or office. 2. Will the organization be involved in proceedings that will come before the judge, or will it be engaged in frequent adversary proceedings in in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member? 3. Will membership cast reasonable doubt on a judge’s impartiality, demean the office, or interfere with the proper performance of judicial duties? 4. Is the organization involved in fund-raising of any sort, and will the judge be called upon to participate in soliciting funds to support the organizations? 5. Are the nature and purpose of the organization changing; is it advocating new positions; are its membership rules changing; has it begun to appear in legal proceedings? 49

Activities for Compensation from Which Judge Should Refrain. If the answer to any one of the following eight questions is yes, then the judge must decline to engage in the activity. The eight queries 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 the 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 conflicts 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. 50

Media Appearances Are Often Problematic JEAC Op 2021-10 is Instructive and provides some guideposts: Is it compensated? Is it regular or frequent? Are you lending prestige or making public comment: – Does the compensation entity promote your appearance or involvement? – Is it informative in nature or might it be reasonably expected to affect outcome or impair fairness? 51

Problem Set 5 Disqualification 52

Problem Set 5 Disqualification 5-1. In the case of P vs D, you announce at the beginning of the hearing, “I own 100 shares of stock in D, Inc., worth 8000. I’ll recuse myself from this case and will bring in another judge, unless you have no problem with my stock ownership.” Counsel for P and D turn to each other briefly, discuss the matter privately, and then each says on the record: “We have no problem, your honor.” Have you acted appropriately and may you now proceed to conduct the hearing? 5-2. While a practicing attorney, you represented class-action plaintiffs in a complex consumer fraud case. In that case, you acquired no relevant client confidences or secrets because you were only involved in various legal questions rather than factual issues. At that time, you were an associate in the firm and only worked on some legal background memos regarding venue issues. The senior partners in the law firm worked substantially on the case. The same class action suit has now been brought before you. You have been asked to rule on several substantive issues of law having nothing to do with your earlier work on the narrow venue matters. Is it proper for you to rule? 53

5-1. In the case of P vs D, you announce at the beginning of the hearing, “I own 100 shares of stock in D, Inc., worth 8,000. I’ll recuse myself from this case and will bring in another judge, unless you have no problem with my stock ownership.” Counsel for P and D turn to each other briefly, discuss the matter privately, and then each says on the record: “We have no problem, your honor.” Have you acted appropriately, and may you now proceed to conduct the hearing? 54

5-1. Disqualification No. You may not proceed. Judge's ownership of stock in party is a disqualifying interest, under Canon 3E(1)(c) if the ownership is not de minimis. Remittal procedure in Canon 3F, but it requires that the judge ask the lawyers and the parties to consider a waiver out of the presence of the judge. That was not done here. Waiver improper. 55

5-2. While a practicing attorney, you represented class-action plaintiffs in a complex consumer fraud case. In that case, you acquired no relevant client confidences or secrets because you were only involved in various legal questions rather than factual issues. At that time, you were an associate in the firm and only worked on some legal background memos regarding venue issues. The senior partners in the law firm worked substantially on the case. The same class action suit has now been brought before you. You have been asked to rule on several substantive issues of law having nothing to do with your earlier work on the narrow venue matters. Is it proper for you to rule? 56

5-2. Disqualification No, it would be improper for you to rule on the issues in this case. Canon 3E(1)(b), judge shall be disqualified in proceeding where the judge served as lawyer in the matter in controversy. This disqualification can be waived, but the waiver is not proper unless lawyers and parties agree to waive it. See Canon 3F. 57

Take Away Slide Disqualification Read Canons 2B and 3E AND follow Hurley's 7 rules for handling a motion for disqualification, slightly updated, which will serve you well as a new judge. They are: 1. Say nothing; study the motion. 2. Determine procedural regularity (differs from "legal sufficiency" in that it is focused on such matters as whether it is in writing, specifically alleges facts and reasons, is sworn to by the party signing the motion, is filed in accordance with procedures contained in rule 2.330(c)-(e).) 3. Is this the party’s first or second motion? (If it is first one, proceed to Hurley's Rule 4 and determine legal sufficiency. If this is the second motion and the predecessor judge granted the first one, "successor judge shall not be disqualified based on a successful motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. successor judge may rule on the truth of the facts alleged and support of the motion." RJA 2.330(g).) 4. Determine legal sufficiency. (Ask yourself whether the facts alleged in the motion would place a reasonably prudent person in fear of not receiving a fair and impartial trial. Disqualification motion must contain an actual factual foundation for the alleged fear of prejudice.) 5. Do not contest the facts alleged. 6. Enter a written order. 7. If you grant the motion, sign the order and STOP. 58

Problem Set 6 Political Activity 59

Problem Set 6 Political Activity 6-1. While still a lawyer, you were one of the organizers and founding members of the Florida chapter of No Labels, a group advocating bipartisanship in Congress, which has created a network of super PACs to influence the upcoming elections. Super PACS related to No Labels including: United for Progress Inc.; Citizens for a Strong America Inc.; United Together; Govern or Go Home; and Forward, Not Back, a diverse group of organizations that cannot be pigeonholed as strictly partisan. These super PACs are raising money for “independent expenditures,” which cannot be made in coordination with the campaigns or candidates. No Labels has been appealing to donors from both parties. Founded in December 2010, No Labels, based in Washington, describes its mission as bringing “a new politics of goals-focused problem solving to our government. No Labels has never called for people to entirely shed their party affiliations. As long as they are intellectually honest, we respect conservatives, liberals, and anyone in between who has a sincere desire to address the nation’s problems.” You are not a candidate for re-election in this cycle. You realize you can no longer serve as an officer or hold a leadership role in No Labels, but it is not strictly partisan, so you want to maintain your membership. Can you maintain your membership? 6-2. You are a member of Moms Demand Action for Gun Sense in America and the NRA. May you continue those memberships and attend their events? 6-3. Your spouse belongs to a political party executive committee and campaigns for candidates. You learned today that your spouse is planning to host a campaign event for a candidate at your home. Can you attend this? 6-4. You think that one of the county judges in your circuit is not particularly efficient or effective. You are aware of a local attorney who has privately expressed an interest in seeking judicial office. You are aware you shouldn’t publicly endorse a candidate for office. Nevertheless, you have decided to make private unsolicited contact with several influential members of the local community and have made phone calls or personal contact with these prominent and influential individuals to convey your support for the attorney and encourage theirs. In these communications you have expressed your preference for the attorney candidate in the judicial race and you have asked these local influential community members to declare their public support for your favored candidate. You've been approached by your administrative judge and your chief judge who have expressed a concern about this. You have explained that as far as you are concerned, these are private communications, and you are not publicly endorsing or opposing candidates for public office. Are you permitted to continue doing this? 60

6-1. While still a lawyer, you were one of the organizers and founding members of the Florida chapter of No Labels, a group advocating bipartisanship in Congress, which has created a network of super PACs to influence the upcoming elections. Super PACS related to No Labels including: United for Progress Inc.; Citizens for a Strong America Inc.; United Together; Govern or Go Home; and Forward, Not Back, a diverse group of organizations that cannot be pigeonholed as strictly partisan. These super PACs are raising money for “independent expenditures,” which cannot be made in coordination with the campaigns or candidates. No Labels has been appealing to donors from both parties. Founded in December 2010, No Labels, based in Washington, describes its mission as bringing “a new politics of goals-focused problem solving to our government. No Labels has never called for people to entirely shed their party affiliations. As long as they are intellectually honest, we respect conservatives, liberals, and anyone in between who has a sincere desire to address the nation’s problems.” You are not a candidate for re-election in this cycle. You realize you can no longer serve as an officer or hold a 61

6-1. Political Activity No, while you may be member of organization that is bipartisan in membership and nonpartisan in nature and addresses political and societal issues, you cannot maintain membership or attend No Labels because its express purpose is to influence elections. See Op. 13-20 (SUNPAC violates Canon 7A(1) and 7D). Op. 95-01 (judges may be members of organizations that are "essentially public awareness organizations that address political and social issues," are bipartisan in membership, non-partisan in nature, and do not appear to be proscribed by Canon 7. P. 122-123 Judicial Ethics Benchguide (June 2020 Ed.) 62

6-2. You are a member of Moms Demand Action for Gun Sense in America and the NRA. May you continue those memberships and attend their events? 63

6-2. Political Activity No, to Moms Demand Action and a qualified yes to NRA. Op. 09-13 (NRA membership ok “so long as the judge does not become personally involved in lobbying or fundraising efforts and does not participate in the NRA’s Institute for Legislative Action and so long as lobbying on issues likely to come before the judge does not become the primary purpose of the NRA.” “ mere membership in organization well-known for positions on political or controversial issues or [that] promotes a particular legislative agenda is not prohibited by the Code of Judicial Conduct. While NRA involved in political matters, it is neither ‘political party’ nor ‘political organization’” as defined in Definitions section of Code .” 64

6-3. Your spouse belongs to a political party executive committee and campaigns for candidates. You learned today that your spouse is planning to host a campaign event for a candidate at your home. Can you attend this? 65

6-3. Political Activity No. Attending event in own home, according to JEAC, could subject judge to allegations of violating 2 provisions of Canon 7. Regardless of the judge’s presence, use of family home could subject judge to criticism or complaints re: Canon 7A(1)(b) (“[A] judge . . . shall not . . . publicly endorse . . . another candidate for public office.”). Canon 7D (“A judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, (ii) on behalf of any measures to improve the law, the legal system or the administration of justice, or (iii) as expressly authorized by law.”). None of those three exceptions apply here. 66

6.4 You think that one of the county judges in your circuit is not particularly efficient or effective. You are aware of a local attorney who has privately expressed an interest in seeking judicial office. You are aware you shouldn’t publicly endorse a candidate for office. Nevertheless, you have decided to make “private” unsolicited contact with several influential members of the local community and have made phone calls or personal contact with these prominent and influential individuals to convey your support for the attorney and encourage theirs. In these communications you have expressed your preference for the attorney candidate in the judicial race and you have asked these local influential community members to declare their public support for your favored candidate. You've been approached by your administrative judge and your chief judge who have expressed a concern about this. You have explained that as far as you are concerned, these are private communications, and you are not publicly endorsing or opposing candidates for public office. Are you permitted to continue doing this? 67

6-4. Political Activity No. Violates Canons 1, 2B, 7A(1)(b), and 7A(3)(a). Canon 1 states that, “An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.” Canon 2B provides in pertinent part, that, “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others ” Canon 7A(1)(b) states that a judge “shall not publicly endorse or publicly oppose another candidate for public office.” Canon 7A(3)(a) provides that candidates for judicial office “shall be faithful to the law and maintain professional competence in it, and shall not be swayed by partisan interests, public clamor, or fear of 68

Take Away Slide Political Activity Canon 7 and 3B(10) 1. Is it political? - - - organization / speech/or activity involving a political party or other group the principal purpose of which is to further the election or appointment of candidates to political office? 2. Are you making a promise or committing to a specific position? 3. Are you making any public comment that might be reasonably expected to affect outcome or impair fairness of proceedings in any court? 4. Are you endorsing a person or organization or speaking on behalf of them? 5. Does it involve money? 69

Problem Set 7 Behavior, Demeanor, Abuse of Power, and Work Hours 70

Problem Set 7 Behavior, Demeanor, Abuse of Power, and Work Hours 7-1. You have been asked to assist a family friend whose grandchild needs medical attention. You have been asked to help resolve an issue of insurance coverage. What your friend is most concerned about is that his own child is a poor parent, nor pursuing the insurance claim and failing to seek proper medical attention for the child. Your friend is going to court today and has asked you to accompany him to the Family intake unit and to the Probate and Guardianship division to help him sort out where to go to file and what to do to expedite the matter. He asked you to help figure out the best way to obtain and complete the necessary documentation to file for emergency temporary guardianship and immediate custody of his grandchild. You will help him navigate the clerk’s office assisting with filling out the forms and accompany him to where he needs to be to file late Friday. You ask the duty judge on Saturday if she has time to hear the matter. Can you assist him in the manner described? 7-2. Your friend now has custody of the child and is summoned for jury duty and asks you if you can help him get out of serving since he has no day care coverage. It is his second deferral and he cannot just request another date of service in writing. Can you call the jury room and request he be excused or set to a later date? 7-3. You are an independent constitutional officer, duly elected by the people for a six-year judicial term. You realize that organizationally courts must have some minimum standards of operation and chief judges have power to assign judges to particular divisions and demand that judicial work be done, but you categorically reject that they can say how you will conduct your work. Within your adjudicative role, you will exercise your sound discretion to decide what is the most effective, efficient way to run your court. Clearly, you must be in the courthouse for hearings and trials (at least when there is not a global pandemic), but the era of needing to be tied to a desk in a brick and mortar building full time has passed. You believe in work-life balance. If you want to take time off to accompany your spouse and children on a portion of your spouse’s summer sabbatical from the university and you decide that is doable, the decision should be entirely yours and voters can express their appreciation or displeasure about your work habits at the polls. In this a legally sound position for you to take? 7-4 You are sitting in a family division and a half day dissolution trial is set on Friday morning. You are leaving for vacation late Friday afternoon. Both sides have agreed and asked to be able to appear by zoom (they are unaware of your vacation plans). There are no other witnesses than the parties and one of them lives out of state. It would save everyone money. Your Chief Judge has told everyone COVID is over and judicial activities, even when some parties, witnesses or attorneys may be attending remotely, are to happen in the courthouse now. You decide to stay home and do 71

7-1. You have been asked to assist a family friend whose grandchild needs medical attention. You have been asked to help resolve an issue of insurance coverage. What your friend is most concerned about is that his own child is a poor parent, nor pursuing the insurance claim and failing to seek proper medical attention for the child. Your friend is going to court today and has asked you to accompany him to the Family intake unit and to the Probate and Guardianship division to help him sort out where to go to file and what to do to expedite the matter. He asked you to help figure out the best way to obtain and complete the necessary documentation to file for emergency temporary guardianship and immediate custody of his grandchild. You will help him navigate the clerk’s office, assisting with filling out the forms and accompany him to where he needs to be to file late Friday. You ask the duty judge on Saturday if she has time to hear the matter. Can you assist him in the manner described? 72

7-2. Your friend now has custody of the child and is summoned for jury duty and asks you if you can help him get out of serving since, he has no day care coverage. It is his second deferral, and he cannot just request another date of service in writing. Can you call the jury room and request he be excused or set for a later date? 73

7-1 & 7-2. Behavior, Demeanor, Abuse of Power, and Work Hours No, you cannot assist in the manner described. Calls into question integrity and independence of the judiciary contra to Canon 1. Violates Canon 2 requiring judge to avoid impropriety and its appearance. Canon 2B. "A judge shall not allow social relationships to influence the judge's judicial conduct or judgment. A judge shall not lend prestige of judicial office to advance private interests of the judge or others; nor shall the judge convey or permit others to convey the impression they in special position to influence ." See e.g., In re Holloway, 832 So. 2d 716 (Fla. 2002) 74

7-3. You are an independent constitutional officer, duly elected by the people for a six-year judicial term. You realize that organizationally courts must have some minimum standards of operation, and chief judges have power to assign judges to particular divisions and demand that judicial work be done, but you reject that they can say how you will conduct your work. Within your adjudicative role, you exercise your sound discretion to decide what is the most effective, efficient way to run your court. You believe in worklife balance. You want to take time off to accompany your spouse and children on a portion of your spouse’s summer sabbatical from the university. You decide that it is doable, and voters can express their appreciation or displeasure about your work habits at the polls. In this a legally sound position for you to take? 75

7-3. Behavior, Demeanor, Abuse of Power, and Work Hours No. It is neither legal nor ethical. See: Florida Supreme Court AOSC 14-66 citing Article V, section 2(a) of the Florida Constitution; Rule of Judicial Administration 2.205(a)(1)(A), and Canons cited therein. 76

7-4 You are sitting in a family division and a half day dissolution trial is set on Friday morning. You are leaving for vacation late Friday afternoon. Both sides have agreed and asked to be able to appear by zoom (they are unaware of your vacation plans). There are no other witnesses than the parties and one of them lives out of state. It would save everyone money. Your Chief Judge has told everyone COVID is over and judicial activities, even when some parties, witnesses or attorneys may be attending remotely, are to happen in the courthouse now. You decide to stay home and do the trial by 77

7-4. Behavior, Demeanor, Abuse of Power, and Work Hours Probably no. Key here is “your chief judge has told everyone. judicial activities are to happen in the courthouse now.” Judges must avoid making administrative, operational decisions that appear to disregard clear directions of chief judge and administrative judge. Such decision at odds with Canon responsibilities AND Rule 2.215(h) Rules of General Practice and Judicial Administration (holding that noncompliance “with an order or directive of chief judge shall be considered neglect of duty and shall be reported by the chief judge to the Chief Justice of the Supreme Court. Chief Justice may report neglect to JQC), AND Fla Stat Sec. 43.26 (4) (stating in pertinent part, “failure of any judge. to comply with an order or directive of the chief judge under this section shall constitute a neglect of duty for which such officer may be suspended from office as provided by law.” See also, Inquiry Concerning a Judge, re: Marni Bryson, 329 So. 3d 731 (Fla. 2021) 78

Take Away Slide Behavior, Demeanor, Abuse of Power, and Work Hours Conduct Toward Lawyers, Parties, Witnesses, Court Personnel AND Diligent Service of Duties 1. Fla. Code Jud. Conduct, Canon 1 Am I observing high standards of conduct? 2. Fla. Code Jud. Conduct, Canon 2A Am I acting always in a manner that promotes confidence in the integrity and impartiality of the judiciary? 3. Fla. Code Jud. Conduct, Canon 2A Am I avoiding using the “prestige of judicial office to advance the private interests of myself or others? 4. Fla. Code Jud. Conduct, Canon 3B(4) Am I being patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom I deal in an official capacity? 5. Fla. Code Jud Conduct, Canon 3B(5) Am I performing judicial duties without bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, and am I ensuring that I do not permit staff, court officials, and others subject to my direction and control to do so? “This section does not preclude the consideration of race, sex, religion, national origin, disability, age, sexual orientation, socioeconomic status, or other similar factors when they are issues in the proceeding.” 6. Fla. Code Jud. Conduct, Canon 3B(6) “Am I also requiring lawyers in proceedings before me to govern themselves accordingly while being patient, dignified and courteous in doing so? 79

AOSC14-66. IN RE: Diligent Performance of Judicial Duties, and JEAC Op 2004-38 are instructive and deal with some or all the following code provisions: 1. Fla. Code Jud Conduct, 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.” 2. Fla. Code Jud. Conduct, Canon 3A “The judicial duties of a judge take precedence over all the judge’s other activities. The Judge’s judicial duties including all the duties of the judge’s office prescribed by law.” 3. Fla. Code Jud. Conduct, Canon 3B(8) “A judge shall dispose of all judicial matters promptly, efficiently and fairly.” 4. Fla. Code Jud. Conduct, Canon 3B(8), Commentary “Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to insist that court officials, litigants, and their lawyers cooperate with the judge to that end.” 5. Op. 2004-38 while the Code of Judicial Conduct does not expressly limit the number of vacation days a judge may ethically take in a year, judges must be guided by provisions of the Code requiring proper performance of judicial duties, diligent administration of justice, the placement of judicial obligations above all other activities, and avoidance of the appearance of impropriety. It would be improper and a violation of the Code for a judge to take vacation time if it conflicted with carrying out judicial duties or created an appearance of impropriety. 2B, 3, 3A, 3B(8), and 3C(1). 80

Behaving ethically as a Judge means more than being a good person. It is more than doing the right thing. There are rules. When in doubt – Don’t! 81