FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2009-18
Date of Issue: September 29, 2009

ISSUE

May a judge serve as trustee of a trust created by the judge’s grandfather for the benefit of the judge’s uncle?

ANSWER: Yes.

FACTS

The inquiring judge’s grandfather left a substantial devise, in trust, to his son, the judge’s uncle. The judge was named one of two trustees. The trustees’ duties include taking care of the uncle’s basic needs and protecting the asset. The uncle has hired counsel and has filed contested litigation seeking to have the trust dissolved and the trustees removed. This litigation is not in the circuit where the inquiring judge presides. 

DISCUSSION

Canon 5E of the Florida Code of Judicial Conduct governs a judge’s fiduciary activities.  It states:

    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.
    2. A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before  the judge, or if the estate, trust or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.

    (Emphasis supplied.)

    This committee has consistently advised that Canon 5E (formerly 5D) prohibits a judge from serving as trustee of a trust for any person other than a family member. By its express terms, this Canon prohibits a judge from serving as an executor or trustee for a non-family member. JEAC Op. 2008-05. Even in the instance of a judge acting as trustee for a close family member, a judge is prohibited from serving as a trustee if such service interferes with the performance of judicial duties. JEAC Op. 92-18.

    The definition section of the Code, in its Preamble, defines a "member of the judge's family” as a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship.

    A majority of the Committee concludes that since the grandfather was the settlor of this trust, it is the grandfather’s trust, and the uncle is merely the beneficiary of the trust. It was the grandfather who chose the trustee and put faith and confidence in his grandchild, the judge. Therefore, it is not necessary to determine whether or not the uncle is a “member of the judge’s family” as that term is defined in the Code. The Code specifically authorizes a judge to serve as trustee of the judge’s grandfather’s trust. The judge may therefore properly serve as trustee of this trust. 

    A minority of the Committee is of the opinion that this trust must now be considered as the uncle’s trust, the settlor/grandfather having died, and that, therefore, the judge/trustee/fiduciary and the uncle must have a “close familial relationship” for the uncle to fit the Code’s definition of “member of the judge’s family.” Since that close familial relationship is not alleged to exist in this inquiry, the minority of the Committee believe the inquiring judge should not serve as a trustee of this trust.  

    REFERENCES

    Fla. Code Jud. Conduct, Preamble, Canon 5E(1) and (2).   
    JEAC Opinions 92-18; 2003-12; 2004-15; 2008-05.

    _____________

    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 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. See 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. See Id.

    The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

    For further information, contact: Judge T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

    Participating Members:
    Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


    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)