FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2003-12
Date of Issue: July 17, 2003

JUDGE AS TRUSTEE OF IRREVOCABLE TRUST SET UP BY JUDGE'S FORMER FATHER-IN-LAW.

ISSUES

Whether a circuit court judge may remain as a Trustee for an irrevocable trust set up by the judge's former father-in-law for the former father-in-law's wife where the judge's former wife may receive the remainder of the irrevocable trust corpus and interest when the father-in-law's wife passes away and where the judge's children will receive the remainder of the trust proceeds when the judge's former wife passes away.

ANSWER: No.

FACTS

Prior to the inquiring judge's divorce, his then father-in-law created five trusts. Four of those trusts are life insurance trusts, one for each of the former father-in-law's four daughters. One of the four daughters was married to the inquiring judge. The marriage ended by divorce. The life insurance trusts will be funded from insurance policy proceeds upon the former father-in-law's death. Each daughter will receive a small annual distribution from the trust and the remainder of each trust will pass to the daughter's respective children, including the children of the inquiring judge. In other words, the inquiring judge's former wife will have a trust from which she will receive small distributions during her lifetime, and the inquiring judge's children will receive the remainder of the trust corpus and interest when the inquiring judge's wife dies.

The fifth trust created by the former father-in-law is for the father-in-law's current wife. It is an irrevocable trust that has already been either partially or fully funded. Pursuant to the terms of that trust, distributions (from the interest and corpus, if necessary) will be made to his wife during her lifetime. When she dies, whatever remains in her trust will be distributed in four equal shares to the life insurance trusts created for the former father-in-law's daughters with remainder passing to the daughters' children, including the children of the inquiring judge.

The former father-in-law has named the inquiring judge as one of the trustees for the fifth trust, the irrevocable trust for the former father-in-law's current wife. Both the inquiring judge's former father-in-law and the former father-in-law's current wife want the inquiring judge to remain as a trustee notwithstanding the fact that he is no longer married to the former father-in-law's daughter.

DISCUSSION

Code of Judicial Conduct, Canon 5E, states the following:

(1) 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 judge's family, and then only if such service will not interfere with the proper performance of judicial duties.

Because the judge is now divorced from his former wife, he is no longer acting on behalf of a person who is a member of the judge's family. He has no family relationship with his former father-in-law or the former father-in-law's wife or the inquiring judge's former wife. The only family connection between the inquiring judge and the irrevocable trust is with the remainder, which may pass to the inquiring judge's children. However, the trust must first pass through the former father-in-law's current wife, who is no longer a member of the inquiring judge's family, and then the judge's former wife, who is also no longer a member of the inquiring judge's family, before the children are eligible to take under the trust. The definition of "family" under the Code of Judicial Rules does not include a former father-in-law, a former wife or the current wife of a former father-in-law. The irrevocable trust's connection to the inquiring judge's children is too remote to allow the judge to rely on the family exception to the fiduciary activities limitation set forth in Canon 5E(1) of the Code of Judicial Conduct.

DISSENT

A significant minority of the Committee respectfully dissented from the majority opinion. The dissenting view is set forth below.

The pivotal question in this matter is whether the former father-in-law is a member of the inquiring judge's family. The definition section of the Code, as set forth in its Preamble, defines a "member of the judge's family" as follows:

"Member of the judge's family" denotes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship (emphasis added).

The settlor not only is the inquiring judge's former father-in-law, he is the grandfather of the judge's children. Furthermore, the inquiring judge apparently enjoyed the respect and friendship of his father-in-law prior to the judge's divorce from his daughter, and continues to do so, notwithstanding the divorce. Contrary to the majority view, we believe that it should be for the judge to decide, based upon the unique facts of the judge's family relationships, whether the judge continues to maintain a close familial relationship with his former father-in-law. If the inquiring judge continues to maintain such a relationship, then we believe that he may ethically accept the duties as trustee. If the judge does not maintain such a relationship, then the judge should respectfully decline. The identity and relationship of the beneficiaries of the trust, whether contingent or not, should not be relevant factors unless a conflict should arise which would interfere with the proper performance of the judge's duties.

REFERENCES

Fla. Code Jud. Conduct, Canon 5E (1).

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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 Judge Phyllis D. Kotey, Judicial Ethics Advisory Committee, Eighth Judicial Circuit, Alachua County Courthouse, 201 East University Avenue, Room 205, Gainesville, Florida 32601.

Participating Members:
Judge Charles J. Kahn, Jr., Judge Lisa Davidson, Judge Phyllis Kotey, Judge Richard R. Townsend, Judge Scott J. Silverman, Judge McFerrin Smith, III, Judge Jeffrey D. Swartz, Judge Emerson Thompson, Judge Jose M. Rodriguez, Ervin A. Gonzalez, Esquire and Marjorie Gadarian Graham, Esquire.


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)