FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-05
Date of Issue: February 1, 2012

ISSUE

May a judge appear as guardian of the judge’s minor children at a mediation in a contested probate estate?

ANSWER: Yes.

FACTS

The inquiring judge is one of several beneficiaries in a probated estate. The judge’s minor children are beneficiaries as well. Certain provisions of a will are being contested and mediation is scheduled. The judge is contemplating appearing at the mediation as guardian of the children.

DISCUSSION

Canon 5E of the Florida Code of Judicial Conduct provides: “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 (emphasis added).” A mother and father jointly are the natural guardians of their minor children and are authorized, on behalf of their children, to collect, receive, manage, and dispose of any real or personal property distributed from an estate or trust. Section 744.301, Florida Statutes. A judge who is a parent of a minor child is authorized therefore by Florida law and the Code of Judicial Conduct to act on behalf of a child in probate proceedings. Depending upon the amount in controversy, a formal guardianship may be necessary.  Whether the judge appears as a natural guardian or as a formally appointed guardian, however, is irrelevant under the Code. The judge may serve as guardian since the children are family members and the facts do not suggest any interference with the proper performance of judicial duties.

The judge should make clear to all parties however, that the judge’s appearance at mediation is as guardian and not as attorney, advocate or negotiator, for the children. Although the judge may give legal advice and draft documents for the children, the judge should not file an appearance as a lawyer on their behalf nor should the judge negotiate on behalf of the children as their lawyer. Canon 5G, Fla. Code Jud. Conduct; see In Re Turner, 36 Fla. L. Weekly S656 (Fla. 2011).

REFERENCES

In Re Turner, 36 Fla. L. Weekly S656 (Fla. 2011).

Florida Code of Judicial Conduct:  Canons 5E and 5G.

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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 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 Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The 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: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Jose′ Rodriguez, 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)