FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-08
Date of Issue: March 14, 2005

ISSUES

After assuming the bench, should a judge close a trust (iota) account that existed from the judge’s practice, even though it is simply being used for the distribution of funds when received?

ANSWER: Yes.

FACTS

The inquiring judge had practiced securities litigation matters when in private practice, and has advised the committee that some fees are currently being paid pursuant to settlement agreements and/or possible court awards. The inquiring judge is asking this committee if the judge can leave the trust account open for the sole purpose of handling the distribution of these funds if and when these future monies are received.

DISCUSSION

The inquiring judge has asked the committee to render an opinion regarding the closure of private practice and the necessity to close a Trust (IOTA) Account while further payments of settlement agreements and awards of attorney’s fees are still outstanding. Article 5, Section 13 of the Constitution of the State of Florida prohibits judges from engaging in the practice of law. In addition, Canon 5(G), Florida Code of Judicial Conduct requires that a judge no longer practice law. The fact that the inquiring judge merely wishes to disburse the funds to his/her former clients pursuant to a settlement agreement in an administrative capacity still falls under practicing law in a representative capacity. According to Rule 5-1.1, Rules Regulating Trust Accounts, section (a)(1) states:

“a lawyer shall hold in trust, separate from the lawyer’s own property, funds and property of clients or third persons that are in a lawyer’s possession in connection with representation. All funds, including advances for fees, costs, and expenses, shall be kept in a separate bank or savings and loan association account maintained in the state where the lawyer’s office is situated or elsewhere with the consent of the client or third person and clearly labeled and designated as a trust account.”

In order to keep the Trust (IOTA) Account open, the inquiring judge must still maintain the lawyer’s business name in order to accomplish this goal. Thus, the inquiring judge would be in violation of Canon 5(G), Fla. Code Jud. Conduct if the trust account remained opened.

More importantly, the Florida Code of Judicial Conduct, Canon 5(E) 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.”

The inquiring judge is acting in an administrative capacity by distributing the funds to former clients and associating attorneys when said monies are eventually received. Thus, this violates Canon 5E since these parties are not members of the inquiring judge’s family. Obviously, the inquiring judge may collect a fee earned prior to assuming the bench, as long as any division of fees is in compliance with the Rules of Professional Conduct for Lawyers, Rule 4-1.5(f)(g). See JEAC Op. 03-12, JEAC Op, 97-9, JEAC Op. 94-7, JEAC Op. 89-1, and JEAC Op. 82-4.

This Committee recommends that the trust account be closed and that all future disbursements be made through the trust account of a third party.

REFERENCES

Article 5, Section 13, Florida Constitution

Florida Code Judicial Conduct, Canons 5(G) & 5(E)(1).

Rule Regulating Trust Accounts-Rule 5-1.1-Trust Accounts

Rules of Professional Conduct -Rule 4-1.5 (f) & (g)-Fees for Legal Services

Fla. JEAC Ops: 82-4, 89-1, 94-7, 97-9, and 03-12.

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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 Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Melanie May, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Emerson R. Thompson, jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)