FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 2000-01
Date of Issue: January 21, 2000

WHETHER A JUDGE MAY ACT AS TRUSTEE OF PROPERTY DEVISED TO HIM AS TRUSTEE TO BE HELD IN TRUST FOR HIS BENEFIT?

ISSUE

May a Judge, who is named a trustee of property devised to him and his wife as a life estate, serve as trustee of that property?
ANSWER: Yes.

FACTS

The inquiring judge is named as a trustee in a Last Will and Testament. The will provides that the Judge serve as the trustee over the decedents entire tool collection, which is to be held in trust for the Judge. The decedent also devised, his gun collection, edge weapon collection, saddles, and miscellaneous collectibles, to the judge, as trustee, while holding it in trust for his wife and himself. Additionally, it provides that the corpus of the trust may not be sold or otherwise disposed of and directs that the trust property be for the use of the beneficiary or beneficiaries during their lifetime. Finally, it directs the trustee or beneficiaries at a time within their discretion, to place the trust property in a museum with the provision that the testator and trustees names be displayed as the donors.

DISCUSSION

Canon 5(E)(1) of the Code of Judicial Conduct states A Judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judges family, and then only if such service will not interfere with the proper performance of judicial duties. Upon analysis, the language of the testators will directs that the Judge as sole beneficiary, serve as trustee over the testamentary property for as long as he and his wife live or as long as they wish, in essence having a life estate.

Although Canon 5(E)(1) is specific, in Opinion 74-7, the Committee found that it was permissible to hold title to real estate as trustee for the use and benefit of [himself], [his] father and some friends. The Committee found this arrangement acceptable provided that the friends were not lawyers. In this instance, the inquiry is similar to the inquiry in Opinion 74-7, with the difference being that the trustee may at any time appoint a museum to display the devised collection.

The Committee finds that the appointment of the Judge as trustee permissible under Canon 5(E)(1) of the Code of Judicial Conduct, since the trust property is being held for the use and benefit of the Judge and a member of his family. Further, if the Judge as trustee ever decides to appoint a museum to display the testamentary property, the Judges function as trustee may arguably be considered terminated.

REFERENCES

Florida Code of Judicial Conduct Canon 5(E)(1).

Florida Judicial Ethics Advisory Committee Opinion: 74-7.

_____________

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact The Honorable C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, DeLand Jail Building, 130 West New York Avenue, DeLand, Florida, 32720.

Participating Members: Judges Cardonne, C. Kahn, L. Kahn, Levy, Rodriguez, Silverman, Smith, and Swartz.

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)