FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2013-13
Date of Issue: May 22, 2013

ISSUES

May a judge use the judge’s former law office, located in the building where the judge’s family’s law firm continues to practice law, during non-business hours to perform personal and court-related work?

ANSWER: No.

FACTS

The Inquiring Judge and the Inquiring Judge’s spouse own a building in which the Inquiring Judge practiced law before becoming a judge.  The Inquiring Judge practiced law with the Inquiring Judge’s family members at this building.  Those family members continue to practice law in this building, and the Inquiring Judge and the Inquiring Judge’s spouse receive rent from these family members for their continued use of the building as a law office.  As the owner/landlord, the Inquiring Judge periodically inspects the premises and conducts minor maintenance on the building.

In addition to an entrance for the public, the building has an entrance in the rear that is not visible to or accessible by the general public.  The Inquiring Judge does not have an office or computer at home.  The Inquiring Judge’s judicial office is located approximately twenty miles from the Inquiring Judge’s home.

The Inquiring Judge would like to use the office where the judge formerly practiced law, and where the judge’s family members still practice law, to perform personal work and to research and prepare orders for judicial duties.  The Inquiring Judge would not be using the former law office during normal office hours (9:00 a.m. to 5:00 p.m.) but would use it only on weekends and during weekday evening hours.  The office which the Inquiring Judge would be using is located in the back of the building near the rear entrance.  The Inquiring Judge writes that there would be no contact between the inquiring judge and the law firm’s clients or visitors.

The Inquiring Judge also notes that the office to be used has been stripped of any law books, personal diplomas, and certificates which identify the inquiring judge or indicate that Inquiring Judge used the office for the practice of law.

The Inquiring Judge has entered a recusal order applying to the Inquiring Judge’s former law firm and its attorneys.

 

DISCUSSION

Initially, the Inquiring Judge’s proposed conduct appears harmless: using a former law office in a building which the judge owns to do personal and judicial work at times when the public will not be present.  However, when the inquiry is scrutinized further, it appears that the conduct which the Inquiring Judge proposes violates Canon 2B of the Florida Code of Judicial Conduct.  Canon 2B states in part that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”  Judges must not only avoid impropriety, but must avoid the appearance of impropriety.

The Inquiring Judge has entered a recusal order from the former law firm’s cases.  In all probability, the Inquiring Judge will have to maintain this recusal order as to all of the former law firm’s cases as long as the judge has family members in the law firm1 and as long as the judge has a financial interest in the building in which the law firm is located.2  See Fla. JEAC Ops. 85-08; 97-33; 07-10.  However, entering a recusal order from the former law firm’s cases does not resolve the issue of the Inquiring Judge’s use of the former law firm’s office space and equipment. 

“[A] judge is a judge 7 days a week, 24 hours a day.”  In re Frank, 753 So. 2d 1228, 1233 (Fla. 2000).  Canon 2 establishes a high standard of integrity for the judges of this State.  Canon 2A’s Commentary states that “a judge must expect to be the subject of constant public scrutiny.”  Even if a judge views restrictions as burdensome to the judge’s well-intentioned personal conduct, or restrictions that might be viewed as burdensome by the ordinary citizen, the judge must accept those restrictions, and do so freely and willingly.  Fla. R. Jud. Conduct, Commentary to Canon 2A.  

The Inquiring Judge proposes to use the law firm’s facilities on a frequent basis in the evenings and on the weekends to perform personal and judicial work.  It would be naïve to believe that members of the public would not see the Inquiring Judge going to and from the Inquiring Judge’s former law firm (where the judge’s close family members still practice law) and remaining in the law firm’s building for long periods of time.

Canon 2B’s Commentary uses as an example that a judge must not use the judge’s judicial position to gain advantage in a civil suit involving a member of the judge’s family. That same example could be extended to say that a judge should not use the judge’s position to garner business for a judge’s family’s law firm.  The Inquiring Judge’s proposed conduct is an implicit and continual advertisement that this law firm has close ties with the judicial community, and therefore it would be a good place to take one’s law-related issues.   This is especially true if the Inquiring Judge’s community is a small one. 

In Fla. JEAC Op. 06-10, the Committee opined that a judge may not assent to a congratulatory announcement in the Florida Bar News by the judge’s former law firm pertaining to the judge’s recent appointment to the bench. Furthermore, in that opinion, the judge ethically could not assent to the judge’s former law firm mailing a congratulatory announcement about the judge’s recent appointment to the bench. The Committee relied on Canon 2B as support for its opinions.  The Committee wrote, “By permitting the announcement, the Inquiring Judge would be lending the prestige of his/her ascension to the bench to advance the private interests of the former law firm.  In addition, sending the announcement to the law firm’s clients would give the appearance that the former law firm holds a special position of influence over the judge.”  Fla. JEAC Op. 10-35 used similar reasoning in opining that a retiring judge could not permit a mediation firm to send out an announcement that the judge would be joining the firm while the judge was still a sitting judge.

While this Committee opined in Fla. JEAC Op. 07-01 that a part-time traffic magistrate may share office space with a law firm, that situation is distinguishable because  magistrates and hearing officers may ethically practice law in certain areas during their tenure in such positions, whereas sitting judges cannot.3

Use of the Inquiring Judge’s former law firm’s facilities continues to reinforce the perception that this law firm has a special tie with a member of the judiciary that may inure to the benefit of a client who uses the law firm. 

Another consideration that ethically prohibits the Inquiring Judge from using the Inquiring Judge’s former law office to perform judicial functions relates to the confidential aspect of the judicial system.  Canon 3B(7)(c) permits a judge to consult with other judges and with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities.  Canon 3B(12) requires a judge not to disclose nonpublic information acquired in a judicial capacity.  Implicit in these Canons is the confidentiality aspect of a judge’s work. Using a law firm’s computer and other equipment for research, e-mailing, and composing judicially related work, allows non-judicial personnel potential access to confidential nonpublic judicial work information.  Canon 2 requires a judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.  Public confidence would be eroded if the Inquiring Judge is using a law firm’s facilities to perform judicial functions.

Although it may be inconvenient, the Inquiring Judge should make arrangements to do personal and judicial work in sites that would not lend the prestige of judicial office to others. 

This opinion, like all JEAC opinions, is limited to the specific facts as set forth by the Inquiring Judge.  It is not ethically impermissible for a judge to visit a law office from time to time for any number of reasons as long as those reasons do not include use of the law firm’s facilities to do personal or judicial work.

A four-member minority of the committee believes the Inquiring Judge may, after normal business hours, use an office in an office building which the Inquiring Judge owns and in which the Inquiring Judge leases office space to commercial tenants, including the Inquiring Judge’s former law partners, some or all of whom are related by blood or marriage, when the Inquiring Judge has a standing recusal order for the firm and its members.

The majority correctly states that “a judge should not use the judge’s position to garner business for a judge’s family’s law firm.”  However, the majority stretches the reach of reason too far when it concludes, “The Inquiring Judge’s proposed conduct is an implicit and continual advertisement that this law firm has close ties with the judicial community, and therefore it would be a good place to take one’s law-related issues. This is especially true if the Inquiring Judge’s community is a small one.”  The majority also opines, “Use of the Inquiring Judge’s former law firm’s facilities continues to reinforce the perception that this law firm has a special tie with a member of the judiciary that may inure to the benefit of a client who uses the law firm.”  As noted in the facts, the Inquiring Judge practiced law with the Inquiring Judge’s close family members in this building, and the Inquiring Judge and the Inquiring Judge’s spouse still own and continue to receive rent from the building’s tenants, including the Inquiring Judge’s lawyer family members.  In the Inquiring Judge’s role as a landlord, the judge has an obligation to periodically inspect, maintain and repair the leased premises. Thus, the judge periodically will be seen at the building.

The Inquiring Judge has not relinquished the Inquiring Judge’s relationship with the Inquiring Judge’s family members upon taking the bench. Most assuredly the Inquiring Judge will be seen with them at a variety of places and events in the community.  If it is a small community, then it is likely the community is well aware of the Inquiring Judge’s close relationship with the family members who practice law and, therefore, “that this law firm has close ties with the judicial community.”  Certainly the “perception that this law firm has a special tie with a member of the judiciary” will persist, even if the Inquiring Judge does not use the office, because the Inquiring Judge in fact has a special tie with the firm’s members – by blood and marriage.  The mere fact the Inquiring Judge uses an office in the Inquiring Judge’s own rental building to conduct personal business will not change that reality.  If it is a large community, then it is unlikely that anyone will be aware of the Inquiring Judge using the back entrance to access a portion of the building after hours when there would be no contact between the Inquiring Judge and the law firm’s clients and visitors.

While the minority agree with the majority’s conclusion that “[p]ublic confidence would be eroded if the Inquiring Judge is using a law firm’s facilities to perform judicial functions,” this can be rectified by the Inquiring Judge making every effort to prevent the disclosure of any confidential court-related matters during the Inquiring Judge’s use of the office and by the Inquiring Judge using the Inquiring Judge’s own office equipment, including computer, phone, and internet access, rather than the law firm’s property.

Because the building’s tenants are members of the Inquiring Judge’s former law firm (and the Inquiring Judge’s children and child-in-law), the Inquiring Judge already is required to recuse from any of the firm’s cases.  The minority simply cannot perceive how the Inquiring Judge’s use of the office after hours lends the prestige of judicial office to the firm.  Moreover, in the minority’s view, if the tenants were not a law firm, the Inquiring Judge could use the separate office space after hours.    

 

REFERENCES

Fla. Code Jud. Conduct Canons 2A, 2B & Commentaries, 3B(7)(c), 3B(12), 3E(1)(d)(ii), 3E(1)(c), (d)(iii).

In re Frank, 753 So. 2d 1228 (Fla. 2000).

Fla. JEAC Ops. 85-08, 97-33, 06-10, 07-01, 07-10, 10-35.  

_____________


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 the Committee Chair: Judge Jonathan D. Gerber, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michelle Morley, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator

 

1. A judge’s disqualification is required when the judge is related within the third degree to the lawyer in the proceeding.  Fla. Code Jud. Conduct, Canon 3E(1)(d)(ii).

2. A judge’s disqualification is required when the judge,  judge’s spouse or child has more than a de minimis interest that could be substantially affected by the proceedings.  Fla. Code Jud. Conduct, Canon 3E(1)(c), (d)(iii). 

3. However, hearing officers and magistrates would be disqualified from hearing any cases involving the law firm in which they share office space.  Fla. JEAC Op. 07-01.