FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2007-02
Date of Issue: February 8, 2007

ISSUES

Issue I

May a judge remain the beneficiary of a land trust along with some of the judge’s former law partners?

ANSWER:  Yes, but a judge should, as soon as the judge can do so without serious financial detriment, dispose of any interest in real estate the judge owns jointly with lawyers who are likely to appear frequently in proceedings coming before the court on which the judge serves.

Issue II

Whether disqualification is required in cases in which the judge’s former partners, who are still co-beneficiaries of a land trust, appear as counsel.

ANSWER:  Yes.  Disqualification is indicated in cases in which the former law partners and co-beneficiaries of a land trust are involved.

FACTS

The inquiring judge is a beneficiary of a land trust along with some former law partners.  The co-beneficiaries are two partners who remain with the judge’s former firm, and one attorney who is now a partner in a different firm.  While the two former partners who are still with the judge’s former firm do not engage in litigation, it is likely the other attorneys from that firm will appear before the court on which the judge serves.  The third attorney does  litigation and is very likely to appear before the court on which the judge serves when the judge is rotated out of the criminal division.

DISCUSSION

Code of Judicial Conduct, Canon 5 discusses judges’ financial activities.  Specifically, Canon 5D(1)(b) states that:

(1)     A judge shall not engage in financial and business dealings that
. . . .
(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.

Additionally, subsection (4) of Canon 5D counsels that:
(4)A judge shall manage the judge’s investments and other financial interests to minimize the number of cases in which the judge is disqualified.  As soon as the judge can do so without serious financial detriment, the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification.

In Fla. JEAC Op. 78-19, a judge inquired as to the propriety of the judge’s retaining an interest in an office building and a parcel of property along with members of the judge’s former law firm.  A majority of the Committee concluded that the Canons did not prevent the judge from maintaining an interest in the office building or in the parcel of property.  However, they concluded that the judge had to disqualify himself or herself from cases involving members of the judge’s former law firm in view of this relationship.  A minority of the Committee cited to subsection (4) of Canon 5D and urged the inquiring judge to dispose of the property as soon as the judge could do so without serious financial detriment.  Similarly, in Fla. JEAC Op. 76-01, the judge was permitted to remain a beneficiary of land trusts with two former law partners (and others), but members of the Committee urged the judge to dispose of the interest if necessary to avoid frequent disqualification and one member “cautioned that the judge should not serve as an advisor to the trust except insofar as it may apply to the disposition of his own interests.”  See Fla. Code Jud. Conduct, Canon, 5D(1)(b) & 5D(4). 

Absent remittal of disqualification after full disclosure in accordance with Canon 3F, disqualification is required “in a proceeding in which the judge’s impartiality might reasonably be questioned.”  Fla. Code Jud. Conduct, Canon 3E.  The Commentary to Fla. Code Jud. Conduct, Canon 3E(1) states that “a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.”  See also Fla. JEAC Op. 89-02 (advising a judge who owned a beneficial interest in a land trust with another lawyer that the judge must disclose, and “if required, recuse” himself or herself whenever the lawyer appears before the judge).    We previously told another inquiring judge that recusal “may be necessary . . . in any case in which your lawyer-partner [in property ownership] is involved.”  Fla. JEAC Op. 76-20.  Although Canon 3 contains no per se rule, disqualification is indicated under past JEAC opinions when a real estate partner appears before a judge.  See Fla. JEAC Op. 02-19 (“Code of Judicial Conduct [does] mandate the disqualification of a judge who jointly owns a parcel of real estate with an attorney who infrequently appears before the judge[.]”

In general, when “a judge believes he or she should recuse himself or herself, then that same . . . recusal applies when any member of the attorney’s law firm appears before the judge.  See Fla. JEAC Op. 99-13, Fla. JEAC Op. 89-08.”  Fla. JEAC Op. 04-01.     

Again, if frequent disqualification is anticipated because of a judge’s business relationship(s) with (a) lawyer(s), divestment is required under Canon 5, as soon as the judge can dispose of the property interest, without serious financial detriment.

REFERENCES

Florida Code of Judicial Conduct: Canons 3E, 3F, 5, 5D(1)(b) & 5D(4) and Commentary to Canon 3E(1).

Florida Judicial Ethics Advisory Committee Opinions: 04-01, 02-19, 89-02, 78-19, 76-20 & 76-01.

_____________

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 Robert T. Benton, II, Chair, Judicial Ethics Advisory Committee, 301  S. MLK Jr. Blvd. Tallahassee, FL 32399.

Participating Members:
Judge Robert T. Benton, II, Judge Michael Raiden, Judge Lisa Davidson, Judge McFerrin Smith, Judge Leslie B. Rothenberg, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro, Judge Jose Rodriguez, Judge T. Michael Jones, Marjorie Gadarian Graham, Esquire & Patricia E. Lowry, 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
Inquiring Judge (Name of inquiring judge deleted from this copy)