Judge ethically may permit arraignments to be broadcast by TV network but may not contract to provide "teaching segment" on the network.  [Added 11/29/11]

    Judge was approached by a production company that would like to broadcast Judge's criminal arraignments on a television network.  Additionally, the network would like to hire Judge to do a "teaching segment" during which Judge "would explain the law, sentencing choices, and interview different 'players' in the court system."  Judge asked the Florida Supreme Court's Judicial Ethics Advisory Committee whether it would be ethically permissible to accept the offer.

    The Committee had no difficulty concluding that Judge could permit the criminal arraignments to be broadcast.  Fla.R.Jud.Admin. 2.450 allows for media coverage of court proceedings and "is dispositive" of this issue.

    The Committee, however, answered "no" to Judge's teaching segment inquiry.  "Whether the judge’s activity is quasi-judicial [governed by Canon 4] or extrajudicial [governed by Canon 5], the Code [of Judicial Conduct] provides that the activity must not cast reasonable doubt on the judge’s capacity to act impartially and that the activity does not lead to frequent disqualifications.  In addition to taping the judge’s arraignments, the judge would be discussing the law and sentencing choices.  This could lead to frequent disqualification of the judge and could cast reasonable doubt on the judge’s capacity to act impartially in cases discussed publicly by the judge."  Furthermore, the proposed conduct would violate Canon 3B(9), which "prohibits public comment, not only on the inquiring judge’s pending or impending cases, but on pending or impending cases in any court, if the comment might reasonably be expected to affect its outcome or impair its fairness.  Teaching segments, such as suggested by the judge, may reasonably be expected to impair the fairness of the tribunal.  Therefore, this Committee recommends that no judge should make public comments on pending or impending cases."  Judicial Ethics Advisory Opinion 2011-18.

Judge ethically may not speak to judges' conference about case now on appeal that was presided over by judge.  [Added 11/4/11]

    Judge was invited to speak at a conference "sponsored by a national organization organized to improve the administration of justice at the state court level."  Judge was asked to speak about a trial over which Judge had presided.  Although the trial was over, the final judgment is being appealed.  Judge asked the Florida Supreme Court's Judicial Ethics Advisory Committee whether it would be ethically permissible to accept the invitation.

    The Committee answered in the negative, concluding that "the proposed conduct of the inquiring judge is prohibited by Canon 3B(7) [of the Florida Code of Judicial Conduct], which provides that 'a judge shall not initiate . .  ex parte communications . . . concerning a pending or impending proceeding . . ."  This prohibition "is absolute, and not limited in any way by the specific subject matter of the remarks."

    Although the Committee acknowledged that the Commentary to Canon 3 did not expressly extend the prohibition of Canon 3B(7) to include cases on appeal, a majority of the Committee concluded "that the logic of the Commentary, providing that a 'pending proceeding' continues until the conclusion of all appeals, applies with equal force, if not more so, to the ex parte prohibition in Canon 3B(7)" as it did to the expressly-referenced Canons 3B(9) and 3B(10).  "The case which was presided over by the inquiring judge, while it is on appeal, is subject to being returned to the trial judge for further proceedings.  Therefore, the case, although it does not reside at the present time in the inquiring judge's court, is clearly a 'pending proceeding' for purposes of Canon 3B(7)."

    A minority of the Committee would have relied only on Canon 3B(9) in concluding that Judge could not accept the invitation.  Judicial Ethics Advisory Opinion 2011-16.

Judge engaged in improper ex parte communications by obtaining court reporter's help in determining contents of audio recording.  [Added 8/8/11]

    In a juvenile proceeding the contents of an audio recording on a compact disc ("CD") became relevant.  The CD was admitted into evidence and allegedly contained a recording of a phone call from the juvenile to the victim.  When the trial judge heard the CD played in court he indicated that he could not understand the words.  After the hearing, the judge told the parties that he would take the CD into the court reporter's office and listen to it "perhaps at a slower speed, 'as many times as I need to, to understand it or determine that I'm not able to understand it.'"  About 30 minutes later the judge returned to the courtroom and announced that he believed the CD contained threats by the juvenile.  The juvenile was then found guilty of aggravated stalking and making harassing telephone calls.

    The juvenile moved for extraordinary relief pursuant to Fla.R.Juv.Proc. 8.140 "alleging that the trial judge had improperly sought assistance from a court reporter to ascertain the contents of a CD.  The motion alleged that defense counsel learned of these actions from the court reporter after the conclusion of the adjudicatory hearing."  The trial judge recused himself and a hearing was held before a successor judge.  The trial judge testified that the court reporter had helped him understand the contents of the CD.  The successor judge denied the motion for extraordinary relief, concluding that the trial judge "had not engaged in prohibited ex parte communications with the court reporter because the Code of Judicial Conduct specifically authorizes a judge to consult with court personnel 'whose function is to aid the judge in carrying out the judge's adjudicative responsibilities.'  See Fla. Code Jud. Conduct, Canon 3B(7)(c)."  The juvenile appealed.

    The Fifth DCA reversed, concluding that the trial judge's ex parte communication with the court reporter violated the Code.  Judges are not permitted to independently investigate the facts outside the presence of the parties unless expressly authorized by law to do so.  See Commentary to Canon 3B(7).  "Here, [the juvenile] and [the victim] had given conflicting testimony as to the contents of the CD.  The court reporter, in essence, provided the trial court with a third interpretation of the contents of the recording.  The 'evidence' given by the court reporter was done outside the presence of the parties, without their knowledge or consent, and without the opportunity to challenge the court reporter's statements."  H.L.D. v. State, __ So.3d ___ (Fla. 5th DCA, Nos. 5D09-2698, 5D09-2699, 5D09-2895, 8/5/2011).

Order of contempt in child visitation case is reversed due to trial judge's independent investigation of facts.  [Added 3/15/11]

    Mother and Father in a family law matter filed contempt motions against each other relating to visitation, support payments, and related issues.  After a hearing at which testimony and argument was presented, the trial court found Mother in contempt.  "In explaining his finding, the trial judge stated:  'One of the things that [was] stated by the mother was that she had in fact listed the father with the school.  That’s not what the school says.  . . .  Nowhere does the name of the father appear.'  The court stated that this information was 'totally inconsistent with the testimony given under oath by the mother.  Therefore, I find it very difficult to accept or believe anything that [is] uttered from her mouth.'  When counsel for the mother pointed out that there appeared to have been an ex parte communication with the school, the judge explained:  '  I called the school to find out.  . . .  I did it to protect the children.'”

    Mother appealed, arguing that the trial court erred by relying on its independent investigation of the facts.  Agreeing that this constituted "a fundamental denial of due process," the Fourth DCA reversed.

    The court noted that, under Canon 3B(7) of the Florida Code of Judicial Conduct, "[w]ith limited exceptions, '[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding . . . .'"  The Commentary to this section explains:  "A judge must not independently investigate facts in a case and must consider only the evidence presented.”  The trial judge's error was not harmless.  "By initiating communication with the children’s school administration and independently investigating the facts, the trial judge abandoned his role as a neutral arbiter of the dispute.  The independent investigation served to deny the mother due process."  Albert v. Rogers, __ So.3d ___ (Fla. 4th DCA, No. 4D09-4512, 3/9/2011).

Judge may create and maintain a website designed primarily to focus high school students on college or trade school preparation.  [Added 2/3/11]

    The Florida Supreme Court Judicial Ethics Advisory Committee was asked by a judge whether it would be ethically permissible for the judge to create and privately maintain a website designed primarily to focus high school students on college or trade school preparation.  Specifically, the site would contain scholarship information provided by the school system.  "The site would also have a page dedicated to linking those who suffer from domestic violence with assistance.  This domestic violence page would suggest counseling and treatment for those who may need treatment at any of the state certified Batterer’s Intervention Programs.  The site would have links on the main page to the Army, Navy, and Air Force recruiting offices.  Finally the website would have a biographic page and briefly mention a domestic violence case that the inquiring judge was recused from because the violence occurred in front of the judge."

    The Committee maintained its previously-announced policy of not screening the content of the website, much as it declines to vet specific campaign literature.  Therefore, the Committee's advice to the judge addressed "only the concepts of the contemplated conduct."

    A majority of the Committee concluded that the proposed conduct would be permissible, provided that the content of the website complied with applicable provisions of the Florida Code of Judicial Conduct.  The Committee noted that, while a judge's use of a website is not ethically prohibited, a judge may not do something on the web that the judge could not ethically do in person.  The majority pointed out the need for the site to not be of a commercial nature and to avoid linking to commercial sites (see JEAC Opinion 07-21), the fact that the website "may not be used as a forum for the discussion of pending legal matters or otherwise be maintained so as to cast reasonable doubt on the judge's capacity to act impartially as a judge" (see Canon 3B(9), Canon 5A(1)), and the need to refrain from a discussion on the site of pending legal matters (see Canon 3B(9)).

    A minority of the Committee would have reviewed the website and would have rephrased the judge's inquiry as "May a judge create and privately maintain a website designed primarily to focus high school students on college or trade school preparation to the extent the judge also intends to include links for:  (1) assistance for domestic violence victims and batterers, and (2) description of a domestic violence case from which the inquiring judge was recused?”  The minority would have then answered the rephrased inquiry as follows:  "Yes, to the extent the inquiring judge intends to include a link for assistance for domestic violence victims and batterers.  No, to the extent the inquiring judge intends to include a link describing a domestic violence case from which the inquiring judge was recused.  As to the remainder of the inquiry, the committee does not have enough information to render an opinion.”  Judicial Ethics Advisory Opinion 2011-01.

Judge may not allow juvenile offenders to perform community service hours by running in jogging program with him.  [Added 12/3/10]

    Judge presides over cases in a juvenile division.  Offenders sometimes are ordered to perform community service hours as a condition of their probation.  Judge would like to establish an optional jogging program that would allow juveniles to perform some community service hours by jogging with Judge.  Other court personnel would be present and, if any case raised conflict issues, Judge would recuse himself.  Judge asked the Florida Supreme Court's Judicial Ethics Advisory Committee whether the proposed conduct would be ethically permissible.

    Although the program seemed "well-intentioned," the Committee answered in the negative.  Judge's participation "likely would violate Canons 2A [judge shall act in manner that promotes public confidence in integrity and impartiality of judiciary], 2B [judge shall not allow relationships to influence judicial conduct or judgment], 3B(7) [judge shall not initiate, permit, or consider ex parte communications], and 5A(1), (2), (5) & (6) [judge shall conduct extra-judicial activities so that they do not cast reasonable doubt on judge’s impartially, undermine judge’s independence, integrity, or impartiality, lead to frequent disqualification, or appear to be coercive] of the Code of Judicial Conduct."

    The Committee was concerned that a juvenile would chose not to participate might fear receiving less favorable treatment from Judge, that Judge might have personal knowledge of juveniles' involvement in the program, that juveniles might make or attempt to make ex parte communications to Judge, and that Judge might have to recuse himself frequently.  Judicial Ethics Advisory Opinion 2010-37.

Retiring judge may not send out announcements about joining mediation firm while still a sitting judge.  [Added 11/18/10]

    Judge plans to retire at the end of the year.  Judge will not be seeking senior judge status but instead will be joining a mediation firm.  The mediation firm would liked to send out announcements stating that Judge will be joining the firm.  The announcement would be sent out prior to the end of the year, while Judge is still on the bench.

    The Florida Supreme Court's Judicial Ethics Advisory Committee concluded that the proposed conduct was not permissible.  "Canon 2B of the Florida Code of Judicial Conduct states in part that '[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.'  If the Inquiring Judge permits this announcement to be sent out, the mediation firm’s interest will be advanced in several potential ways.  For example, lawyers having cases before the Inquiring Judge may use the mediation firm in their other cases in order to curry favor with the Judge.  Litigants and lawyers may be inclined to use the mediation firm while the Inquiring Judge is still a sitting judge because of the Judge’s unique position of still being a judge but having an already established business relationship with the mediation firm.  Further, the mediation firm’s announcement that the Inquiring Judge will be joining the firm gives the impression that the firm and its mediators who are lawyers are in a special position to influence the Judge."  Judicial Ethics Advisory Opinion 2010-35.

Judge may not contact another judge to discuss drug program as alternative to jail in case involving defendant related to judge's friend.  [Added 11/18/10]

    Judge has a friend whose grandson is the defendant in a criminal proceeding.  Judge asked the Florida Supreme Court's Judicial Ethics Advisory Committee whether it would be ethically permissible for Judge "to either write a letter to the presiding judge advocating a drug program which may be used as an alternative to incarceration or, if subpoenaed, appear before the presiding judge to explain the program."  The Committee answered in the negative.

    The Committee concluded that Judge "cannot write a letter on behalf of the friend's grandson to advocate the drug program as an alternative to incarceration.  To do so would violate Canons 2 and 3 of the Code of Judicial Conduct by permitting the judge's social or other relationship to influence the judge's conduct, by making a public comment while a proceeding is pending in court that is made intending, if not expecting, to affect the proceeding's outcome and by lending the prestige of the inquirer's judicial office for the advancement of the private interests of the inquiring judge's friend's grandson.  Additionally, this conduct would impair the confidence of the public in the integrity of the judicial system and in the inquiring judge and would be a violation of Canon 1."

    Similarly, the proposed testimony would be impermissible.  "[T]his contemplated conduct will violate Canons 2A and B, 3B(9) and 4A in that the testimony on behalf of the judge's friend's grandson will lend the prestige of the judicial office to advance the private interests of others; the appearance as a witness by the judge will erode public confidence in the integrity and impartiality of the judiciary; will be perceived as testimony seeking to affect the out-come of the sentencing proceeding; will cast doubt on the judge's capacity to act impartially as a judge; and undermine the judge's independence, integrity or impartially.  Therefore, the inquiring judge should not appear as a witness before the presiding judge."  Judicial Ethics Advisory Opinion 2010-34.

Revocation of probation order reversed due to trial judge's improper ex parte communications with prosecutor and bailiff.  [Added 2/19/10]  --  Sanchez v. State, 27 So.3d 234 (Fla. 2d DCA 2010).

Magistrate and judge may not communicate on merits of referred case without informing parties.  [Added 9/25/09]  --  Judicial Ethics Advisory Committee Opinion 2009-17.

Trial judge in post-dissolution child support and visitation case erred by adopting verbatim order prepared by one party without giving pro se opponent opportunity to comment.  Ross v. Botha, 896 So.2d 567 (Fla. 4^th DCA 2004) (on rehearing).  (See also Perlow v. Berg-Perlow, 875 So.2d 383 (Fla. 2004).)