FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-01
Date of Issue: January 18, 2006

ISSUES


1. Whether a recently appointed judge may sign a title insurance policy after taking the bench if the documents that make up the policy have been recorded before taking the bench and the effective date of the policy takes place before the judge takes the bench.

ANSWER: No. The signing of a title insurance policy after taking the bench constitutes the practice of law, which is prohibited by Canon 5G of the Code of Judicial Conduct.

2. Whether a recently appointed judge may receive payment for title insurance policy work done prior to the date when the judge took the bench if the transaction is closed by another attorney after the date the judge takes the bench and the final policy is issued after that date.

ANSWER:Yes. The Judge may accept fees after taking the bench for legal services provided before taking the bench.

3. Whether a recently appointed judge may change the status of his professional association to another legal entity in order to continue owning the building that housed the judge’s law practice.

ANSWER: Yes. The Judge may change the status of his Professional Corporation from a Professional Association to another legal entity in order to continue owning the building through the new legal entity.

4. Whether a recently appointed judge is required to change the status of his profesional corporation or dissolve it before taking the bench even though the professional association will be required to file an income tax return, issue w-2 forms and prepare other documents well after the date of taking the bench.

ANSWER: Yes. The Professional Association should change its status or be dissolved before the date the newly appointed Judge takes the bench, even though corporate tax filings and other legal documents may be required to be filed at a later date.

5. Whether a newly appointed judge may allow his former professional association’s operating account to remain open to receive payments for legal fees due for work done before taking the bench at a date after taking the bench.

ANSWER: Yes. The Operating Account may remain open but should reflect the status of the new legal entity established before the Judge takes the bench.

FACTS

The recently appointed Judge has asked numerous questions discussed below related to winding up of the law practice. The future Judge is a solo practitioner who practices law in a building owned by the Judge’s Professional Association.

DISCUSSION

Canon 5 of the Code of Judicial Conduct provides guidance on most of the issues presented in this inquiry. Addressing the first issue, Canon 5G of the Code of Judicial Conduct states: “a Judge shall not practice law.” By signing a title of insurance policy after the Judge has taken the bench, the Judge will be practicing law. Accordingly, Canon 5G prohibits such action. See Fla. JEAC Op. 05-19. In that opinion, we said that the practice of law prohibited by Canon 5G, is not limited to appearing in Court, or advising and assisting in the conduct of litigation, “but it embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law.”

As to the second issue, the inquiring Judge may receive payment for legal work done before taking the bench in issuing a title insurance policy. This is true even if the transaction is closed by another attorney after the date the Judge takes the bench, provided that the payment for attorney’s fees was related to work done prior to the date the Judge took the bench. While Canon 5G of the Code of Judicial Conduct prohibits a Judge from practicing law, the Code does not prohibit a Judge from receiving compensation for legal services provided before the date the Judge took the bench, so long as the fees are in compliance with the rules of Professional Conduct for lawyers. Rule 4-1.5(F)(G). See also Fla. JEAC Op. 05-08; Fla. JEAC Op. 97-9; Fla. JEAC Op. 95-11 and Fla. JEAC Op. 94-7.

As to the third issue, a Professional Corporation is defined under §621.03, Florida Statutes, as a Corporation, which is organized “for the sole and specific purpose of rendering professional service….” In this case, the Professional Association was created for the purpose of practicing law. Because a judge cannot practice law, it follows that a judge may not own a Professional Association. Nevertheless, the Professional Corporation may “change its business purpose from the rendering of professional service to provide for any other lawful purpose by amending its certificate of incorporation….” Fla. Stat. §621.13(4) (2005).

Canon 5D(2) specifically allows a Judge, subject to the requirements of the Code, to “hold and manage investments of the Judge and member’s of the Judge’s family, including real estate, and engage in other remunerative activity.” Accordingly, the Judge may continue owning the building that formerly housed his law practice provided that the ownership is not maintained through his former Professional Corporation. Instead, the Professional Corporation should change its status as permitted by §621.13(4), Florida Statutes (2005), before the Judge takes the bench.

As to the fourth issue, this Committee has frequently noted that newly appointed or elected Judges should devote substantial attention to successfully winding up their law practices before taking the bench. See Fla. JEAC Op. 74-13; and Fla. JEAC Op. 05-19. Accordingly, the inquiring Judge’s Professional Association should change its legal status or be dissolved prior to the date the inquiring Judge takes the bench, even though the firm’s tax return, W-2s and other forms and documents will be completed well after the date the inquiring Judge takes the bench.

As to the last issue, an operating account may be maintained to receive payments made after the inquiring Judge takes the bench for services rendered as an attorney before taking the bench, but the corporate entity that holds the account must not be a Professional Corporation once the Judge takes the bench. An attorney that has been appointed a Judge should take all steps necessary to wind up the law practice before taking the bench and where applicable, the wind up period should include changing the status of the Professional Corporation to another appropriate legal entity, changing the status of the operating account, and closing the trust account before taking the bench. See Fla. JEAC Op. 05-08 (Judge should close trust account that existed for the Judge’s practice, even though it was simply being used for the distribution of funds when received); See also Fla. JEAC Op. 05-19.

REFERENCES

Fla. Stat. §621.03 (2005)

Fla. Stat. §621.13(4) (2005)

Fla. Code Jud. Conduct, Canon 5

Fla. Code Jud. Conduct, Canon 5D(2)

Fla. Code Jud. Conduct, Canon 5G

Rules of Professional Conduct – Rule 4-1.5 (F)(G) (fees for legal services)

Fla. JEAC Op. 74-13

Fla. JEAC Op. 94-7

Fla. JEAC Op. 95-11

Fla. JEAC Op. 97-9

Fla. JEAC Op. 05-08

Fla. JEAC Op. 05-19

_____________

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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Marjorie Gadarian Graham, Esq., Chair, Judicial Ethics Advisory Committee, 11211 Prosperity Farms Road, Oakpark, Suite D129, Palm Beach Gardens, Florida 33410.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Ervin A. Gonzalez, Esq., Judge Michael Raiden, Judge Jose M. Rodriguez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro and Marjorie Gadarian Graham, Esquire.


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