FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2002-19
Date of Issue: October 1, 2002

DISQUALIFICATION OF A JUDGE WHO OWNS REAL PROPERTY WITH AN ATTORNEY WHO APPREARS (sic) INFREQUENTLY BEFORE THE JUDGE

ISSUES

Does the Code of Judicial Conduct mandate the disqualification of a judge who jointly owns a parcel of real estate with an attorney who infrequently appears before the judge?
ANSWER: Yes. However, if the Judge complies with the Remittal of Disqualification procedures delineated in Canon 3F of the Code of Judicial Conduct and the parties agree that the judge should not be disqualified, the judge may then participate in the proceedings.

FACTS

The inquiring judge owns a 1/6 interest in a parcel of real estate that is valued at approximately $30,000.00. The judge's former spouse and two of the spouse's former law partners own the other 5/6 interests.

The judge's involvement in the property is primarily passive. The judge does not engage in continuing or frequent transactions regarding the property. Furthermore, the judge does not consider it practical to ask the co-owners to purchase the 1/6 interest; and questions whether to divest his/her interest in the property.

In the past, one of the former partners/co-owners has had cases filed in the judge's division. When that has occurred, the judge has opted, sua sponte, to enter an order of disqualification. The judge now asks whether the Code of Judicial Conduct mandates future disqualifications.

DISCUSSION

Canon 5A(1)(3) provides:

A. Extra judicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so that they do not:
(1)Cast reasonable doubt on the judge's capacity to act impartially as a judge;
(2)Demean the judicial office; or
(3)interfere with the proper performance of judicial duties.

In Judicial Ethics Advisory Opinion 76-20, we were posed with the question of whether a judge's ownership of real property in partnership with another lawyer is permissible under the Code of Judicial Conduct. We concluded that there is no impropriety in the retention of the partnership interest in the property. However, we also cautioned the inquiring judge that disqualification may be necessary in a case in which the lawyer/partner is involved.

Additionally, in JEAC Op. 81-2, we held that a judge's participation in a general partnership that owns unimproved land is permissible under the Code, but cautioned that (sic) the judge about the prospect of disqualification should legal matters involving his partners come before the judge. We noted in the opinion noted (sic) that the judge should divest himself/herself of investments or other financial interests that might require frequent disqualifications.

Canon 5D(1)(a)(b) states:

D. Financial Activities.
(1) A judge shall not engage in financial and business dealings that
(a) may reasonably be perceived to exploit the judge's judicial position, or
(b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.

We addressed the subject of "frequent transactions' in JEAC Op. 82-12. In that opinion, the inquiring judge was a shareholder in an entity that owned a motel. We stated:

It is also important to understand the meaning of "frequent transaction", in the same sense as continual speculation in real estate investments. The purpose of Canon 5C(1) is to prevent the appearance to litigants, lawyers, and the public that patronizing the business in which the judge is involved will work to their advantage, or that failure to patronize the business will work to their disadvantage. These prohibitions, however, do not prohibit an infrequent transaction or continuing business relationship, nor enjoying the fruits of past investments or labor with a lawyer.

Canon 3E(1)(c) provides that a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. These proceedings include, but are not limited to, instances where the judge knows that he or she individually has an economic interest in a party to the proceeding.

In JEAC Op. 78-19, we held that a judge is ethically permitted to maintain an interest in an office building or parcel of property owned with a former law firm, but noted that the judge should disqualify himself from any legal matters that might come before him involving his partners in view of the relationship. See also, JEAC Op. 2001-11 (An administrative judge in the county criminal division who jointly owns a lakeside trailer with the elected state attorney and others must disqualify himself from all cases involving the state attorneys office).

Canon 3F states:

Remittal of Disqualification. A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceedings. The agreement shall be incorporated in the record of the proceeding.

Lastly, in JEAC Op. 97-33, we concluded that a judge who rents office space to attorneys that appear before the judge, did not have to disqualify himself, so long as the parties, through their attorneys, sign an Acknowledgment and Waiver of Conflict of Interest form in compliance with the procedures set forth in Canon 3F. We noted that Canon 3F provides a mechanism for avoiding disqualification where a judge should otherwise be disqualified.

Under the factual scenario presented in this inquiry, the Code of Judicial Conduct does not require the judge to divest himself/herself of his/her interest in the real property. However, the Code mandates disqualification, unless the judge complies with all the procedures set forth in Canon 3F relating to remittals of disqualification.

REFERENCES

Florida Code of Judicial Conduct, Canons 3E(1)(c); 3F; 5A(1)(3) and 5D(1)(a)(b)

Florida Judicial Ethics Advisory Committee Opinions 76-20; 78-19; 81-2; 82-12; and 97-33, and 2001-11.

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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 Jeffrey D. Swartz, Chair, Judicial Ethics Advisory Committee, Eleventh Judicial Circuit, Miami Beach District Courthouse, 1130 Washington Ave, Miami, FL 33139

Participating Members: Judges Davidson, Kahn, Jr., Kotey, Levy, Rodriguez, Silverman, Smith, Swartz, Thompson, Townsend and Attorney Graham

Copies furnished to:
Chief 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)