IN THE SUPREME COURT OF FLORIDA. Case Nos. SC and SC IN RE: PRO BONO ACTIVITIES BY JUDGES AND JUDICIAL STAFF ATTORNEYS

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1 IN THE SUPREME COURT OF FLORIDA Case Nos. SC and SC IN RE: PRO BONO ACTIVITIES BY JUDGES AND JUDICIAL STAFF ATTORNEYS COMMENTS OF INTERESTED PARTY DAVID A. DEMERS CHIEF JUDGE OF THE SIXTH JUDICIAL CIRCUIT IN OPPOSITION TO THE REPORT OF THE TASK FORCE ON PRO BONO ACTIVITIES BY JUDGES AND JUDICIAL STAFF AND STANDING COMMITTEE ON PRO BONO LEGAL SERVICES AND IN SUPPORT OF THE PETITION OF THE JUDICIAL ETHICS ADVISORY COMMITTEE David A. Demers B. Elaine New Chief Judge Court Counsel Sixth Judicial Circuit Sixth Judicial Circuit st Avenue North st Avenue North St. Petersburg, FL St. Petersburg, FL / / / Fax 727/ Fax i

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3 TABLE OF CONTENTS TABLE OF AUTHORITIES iii STATEMENT OF THE CASE AND FACTS iv SUMMARY OF ARGUMENT 1 ARGUMENT I. Staff attorneys should be exempt from aspirational or reporting 2 requirements for pro bono services. Page A. A pro bono requirement is asking too much of staff attorneys. 3 B. A pro bono requirement will raise an appearance of impropriety. 4 II. Judges should be exempt from any reporting requirement for pro bono 6 services. CONCLUSION 7 CERTIFICATE OF SERVICE 8 CERTIFICATE OF COMPLIANCE 9 iii

4 TABLE OF AUTHORITIES Cases Page Amendments to Rules Regulating The Florida Bar 1.31(a) and Rules of Judicial Administration (Legal Aid), 630 So. 2d 501 (Fla. 1994) 2 In re Florida Rules of Jud. Admin. 360 So. 2d 1076 (Fla. 1978) 4 In re Proposed Florida Appellate Rules, 351 So. 2d 981 (Fla. 1977) 4 Amendments to the Florida Rules of Judicial Admin. 682 So. 2d 89 (Fla. 1996) 4 Statutes and Rules Rule of Judicial Administration v Rule of Judicial Administration 2.060(b) 4 Rule of Appellate Procedure Other Authorities Judicial Ethics Advisory Committee Opinion iv

5 STATEMENT OF THE CASE AND FACTS The Task Force on Pro Bono Activities by Judges and Judicial Staff and the Standing Committee on Pro Bono Legal Services (hereinafter Task Force ) filed a report with this Court recommending changes to canon 4B of the Code of Judicial Conduct. They recommended that this canon be amended to authorize judges and members of The Florida Bar employed by the judiciary to encourage certain pro bono activities and to engage in certain pro bono activities. The proposed rule would add the following: Encouragement of and support for attorneys providing pro bono legal services is an activity by judges and members of The Florida Bar employed by the judiciary which relates directly to the improvement of the administration of justice and furthers the judiciary s constitutional responsibility to ensure access to the justice system. Accordingly, judges and members of The Florida Bar employed by the judiciary are encouraged to engage in pro bono service activities intended to facilitate and encourage attorneys to perform pro bono legal services, including but not limited to: speaking, writing, lecturing, and teaching; participating in events to recognize attorneys who perform pro bono legal services; establishing procedural or scheduling accommodations for pro bono counsel, as feasible; and acting in an advisory capacity to pro bono programs. Further, judges and members of The Florida Bar employed by the judiciary are encouraged to perform pro bono service activities which relate to improving access to the justice system for the poor, including the working poor, but which do not involve the practice of law by the judiciary or the restricted practice of law by members of The Florida Bar employed by the judiciary and are otherwise consistent with the requirements of this Code. (Emphasis added). v

6 The Task Force also recommended changes to Rule Regulating the Florida Bar 4-6.1, Pro Bono Public Service, to require judges and members of The Florida Bar employed by the judiciary to report pro bono activities. The Judicial Ethics Advisory Committee (hereinafter Committee ) proposed more limited amendments to the Code of Judicial Conduct, designed to encourage judges to engage in activities to improve the law, the legal system, and the administration of justice. The Committee proposed an amendment to the commentary to canon 4B to recognize that support of pro bono legal services is an activity that relates to the improvement of the administration of justice. It authorizes judges to engage in activities intended to encourage attorneys to perform pro bono services, including, but not limited to: participating in events to recognize attorneys who do pro bono work, establishing general procedural or scheduling accommodations for pro bono attorneys as feasible, and acting in an advisory capacity to pro bono programs. David A. Demers is the Chief Judge of the Sixth Judicial Circuit. Under Rule of Judicial Administration he exercises administrative supervision in the circuit and is responsible for supervising members of The Florida Bar employed by the Sixth Judicial Circuit. This circuit has fifteen trial court staff attorneys. A beginning staff attorney in the state courts system will earn $39,515 per year if admitted to the Bar. vi

7 SUMMARY OF ARGUMENT This Court should reject the proposed amendments to the Code of Judicial Conduct as proposed by the Task Force. The proposed amendments encourage judges and staff attorneys to engage in activities that will create an appearance of impropriety. This Court should reject the proposed amendments to the Rules Regulating the Florida Bar as proposed by the Task Force. Requiring judges and staff attorneys to report pro bono activities is inappropriate. Asking staff attorneys to perform pro bono services is simply asking too much of these attorneys who work tirelessly for the court system. This Court should adopt the proposed amendments to the Code of Judicial Conduct as proposed by the Judicial Ethics Advisory Committee. It should add motor vehicle law as an area of the law in which judges are encouraged to engage in activities to improve the law, the legal system, and the administration of justice. 1

8 ARGUMENT I. Staff attorneys should be exempt from aspirational and reporting requirements for pro bono services. In 1994, this Court adopted goals for pro bono service by members of The Florida Bar and set a goal for each attorney to annually provide 20 hours of pro bono service or contribute $350 to a legal aid organization. Amendments to Rules Regulating The Florida Bar 1-3.1(a) and Rules of Judicial Administration (Legal Aid), 630 So. 2d 501 (Fla. 1994). At that time, this Court determined that judicial officers and their staffs should not be required to participate in the program. 630 So. 2d at 504. The Court articulated two reasons why staff attorneys and judges are prohibited from practicing law and thus were not included in the pro bono requirements. These prohibitions are designed partially to prevent judges and their staffs from taking time away from their judicial duties. More importantly, however, the prohibitions are to prevent them from placing themselves in positions where their actions could directly or indirectly be influenced by matters that could come before them or could provide the appearance that certain parties might be favored over others. These reasons are still true today. 2

9 A. A pro bono requirement is asking too much of staff attorneys. Staff attorneys work tirelessly for the court system. They are public servants in the truest sense of the word. The pay is low, the hours can be long, the work can be tedious, and they don t often get public recognition for their work. The job itself requires a commitment to give back to society. Asking an attorney to perform this work for the court system for low pay and then also expecting them to perform 20 hours of pro bono service, is asking too much. They are being asked to pay twice. First they agree to accept low pay. Then they are asked to pay again, either with their time or money. All attorneys are officers of the court and required to contribute to the betterment of the justice system. Some fulfill their responsibility by taking on the often unseen and unheralded work of a staff attorney. Others are able to fulfill that responsibility by providing pro bono services. Staff attorneys should not be asked to do both. The Code of Judicial Conduct should not be amended to create an aspirational pro bono requirement for staff attorneys. Additionally, the Rules Regulating the Florida Bar should not be amended to require an annual report by staff attorneys of pro bono services. B. Pro bono work will raise an appearance of impropriety. Rule of Judicial Administration 2.060(b) provides: (b) Clerks and Secretaries Not to Practice. No one serving as a research aide or secretary to a justice or judge of any court shall practice as an attorney in any court or before any agency of government while continuing in that position, nor participate in any manner in any proceeding that was docketed in the court during the term of service or prior thereto. This rule was likely adopted to avoid an appearance of impropriety. In re Florida Rules of Jud. Admin. 360 So. 2d 1076 (Fla. 1978). This provision was previously in the Rules of Appellate Procedure but was deleted in the 1977 revisions. In re Proposed Florida Appellate Rules, 351 So. 2d 981 (Fla. 1977). The Committee note to Rule of Appellate Procedure provides: The deletion of former rule 2.3(c) was not intended to authorize the practice of law by research aides or secretaries to any justice or judge or otherwise approve actions inconsistent with the high standards of ethical conduct expected of such persons. 3

10 In 1996, the Rules of Judicial Administration Committee proposed deleting this rule because the subject matter was addressed in Rule Regulating The Florida Bar Amendments to the Florida Rules of Judicial Admin. 682 So. 2d 89 (Fla. 1996). The Court apparently did not agree and retained the rule. The Task Force suggests that staff attorneys should be able to provide client screening, advice, and referral at legal aid offices and homeless shelters as some circuits are apparently doing. These activities raise and appearance of impropriety. How is it proper for the staff attorney to provide screening in legal aid offices? The litigant seen in the legal aid office may very well be the litigant at the courthouse the next day. And it may be that same litigant s case where the judge asks the staff attorney to research a question of law. This is especially true in the trial courts. In Opinion , the Judicial Ethics Advisory Committee considered whether a trial court law clerk could act as an arbitrator. The Committee stated: it is clear that a sitting judge could not participate in rendering a decision which could affect possible litigation before such litigation was even instituted. If such conduct is not permitted of a sitting and active judicial officer then the judge may not permit the judge s staff to participate in such conduct. Staff attorneys should not be required to engage in pro bono activities because doing so raises an appearance of impropriety. 4

11 II. Judges should be exempt from any reporting requirement for pro bono services. The Conference of Circuit Judges adopted a resolution which: 1. Supports the proposal of the Florida Supreme Court Judicial Ethics Advisory Committee to amend the Florida Code of Judicial Conduct generally encouraging judges to support pro bono legal services and encouraging judges to participate in extra judicial activities; and 2. Opposes the proposal of the Task Force and Committee requiring annual reporting by judges of delivery of pro bono legal services or, in the alternative, payment of a $350 annual assessment to a legal aid organization. The Sixth Judicial Circuit wholeheartedly supports that resolution. Further, as suggested by the Conference of County Court Judges, the proposal of the Judicial Ethics Advisory Committee should be expanded. It should include motor vehicle law within those activities that are designed to improve the law, the legal system, and the administration of justice. The Judicial Ethics Advisory Committee s proposed amendment to the commentary to canon 4B should be amended to read: As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including, but not limited to the revision of substantive and procedural law, the and improvement of civil, criminal, domestic relations, probate, and juvenile justice, and motor vehicle law, and the role of the judiciary as an independent branch of government. 5

12 CONCLUSION For the above stated reasons, this Court should (1) reject the proposed amendments to the Code of Judicial Conduct as proposed by the Task Force; (2) (3) reject the proposed amendments to the Rules Regulating The Florida Bar as proposed by the Task Force; and (3) adopt the proposed amendments to the Code of the Judicial Conduct as proposed by the Judicial Ethics Advisory Committee with the addition of motor vehicle as an area of the law in which judges are encouraged to engage in activities to improve the law, the legal system and the administration of justice. Respectfully submitted this 30 th day of August David A. Demers Chief Judge Sixth Judicial Circuit st Avenue North St. Petersburg, FL / / Fax Florida Bar Number

13 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of COMMENTS OF INTERESTED PARTY DAVID A. DEMERS CHIEF JUDGE OF THE SIXTH JUDICIAL CIRCUIT IN OPPOSITION TO THE REPORT OF THE TASK FORCE ON PRO BONO ACTIVITIES BY JUDGES AND JUDICIAL STAFF AND STANDING COMMITTEE ON PRO BONO LEGAL SERVICES AND IN SUPPORT OF THE PETITION OF THE JUDICIAL ETHICS ADVISORY COMMITTEE has been furnished to The Honorable Jeffrey Swartz, Chair, Judicial Ethics Advisory Committee, 1130 Washington Avenue, Miami Beach, FL and The Honorable William A. Van Nortwick Jr., Chair, Task Force to Study Pro Bono Service by the Judiciary and Judicial Staff Attorneys, First District Court of Appeals, 301 South Martin Luther King Jr. Boulevard, Tallahassee, FL by U.S. Mail this 30 th day of August B. Elaine New Court Counsel for the Sixth Judicial Circuit st Avenue North, Room 302 St. Petersburg, FL / /582/7438 Fax Florida Bar No

14 CERTIFICATE OF COMPLIANCE I hereby certify that this brief was prepared using Times New Roman 14 point font, and complies with the requirements set forth in Rule of Appellate Procedure 9.210(a)(2). B. Elaine New 8