FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-22
Date of Issue: September 3, 2014

ISSUE

May a senior judge, as personal representative of the estate of the senior judge’s spouse, in order to close down the deceased spouse’s solo practice, hire staff to bill accounts receivable, become a signor on the firm’s operating and trust accounts, hire an attorney, if necessary (to address any legal issues that may arise in administering the estate and closing down the practice), and purchase tail insurance for the Professional Association?

ANSWER: Yes.

FACTS

The inquiring senior judge has been appointed personal representative of the judge’s late spouse’s estate, letters of administration have been filed, and the inquiring judge has started the process of closing down the judge’s late spouse’s law practice.

The inquiring judge states “I do not intend to [do] anything other than facilitate the collection of receivables and close out the P.A. in my capacity as the PR.  An inventory attorney has been appointed and he has communicated as required with the clients of the P.A.”

The inquiring judge reports that “[t]he main asset to the estate that did not pass by operation of law” is the deceased spouse’s law firm, a Professional Association. The spouse was a sole practitioner with no employees. Reporting substantial account receivables, the inquiring senior judge wants guidance, as personal representative of the estate, as to whether performing certain duties to close the law firm is permissible under the Code.

Specifically, the inquiring senior judge would like to hire staff to bill accounts receivable, become a signor on the firm’s operating account and trust account, hire an attorney (to address any legal issues that may arise in closing down the late spouse’s practice), and purchase tail insurance for the late spouse’s Professional Association.

 

DISCUSSION

The Committee is aware of no reason why in your capacity as personal representative of your spouse’s estate you could not engage in all the activities you propose. Under Canon 5E, which restricts certain conduct by active judges acting as fiduciaries, the mere fact of service as personal representative of a spouse’s estate does not run afoul of the Code.

In the case of a senior judge like yourself, moreover, Canon 5E’s restrictions do not apply at all. See “Application of the Code of Judicial Conduct” (providing that senior judges shall “comply with all the provisions of this Code except Section[] . . . 5E . . . .”). You should be aware, however, of the requirement that a senior judge accept no judicial assignment “in any cause in which the judge’s present financial business dealings . . . might be . . . affected.” Id.

Under Rule 1-3.8, Rules Reg. Fla. Bar, whenever a sole practitioner dies and no “responsible party capable of conducting the attorney’s affairs is known to exist, the appropriate circuit court . . . may appoint an attorney . . . to inventory the files of the subject attorney and to take such action as seems indicated to protect the interests of the clients . . . .”

Inasmuch as this rule has been invoked and an inventory attorney has been appointed, any action on behalf of the deceased spouse’s clients amounting to the practice of law will be undertaken by the inventory attorney, not by you as personal representative. In short, you have taken appropriate, sufficient steps to avoid engaging in the practice of law, and remain eligible for service as a senior judge. The Committee is sorry for your loss.

 

REFERENCES

Fla. Code Jud. Conduct, Application section and Canon 5E.
Rule 1-3.8, Rules Reg. Fla. Bar

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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 to 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.    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 Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

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 whether the proposed conduct violates a provision of that Code.

For further information, contact Dean Bunch, Chair, Judicial Ethics Advisory Committee, 3600 Maclay Boulevard, South, Tallahassee, Florida 32312.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge Robert T. Benton, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michael Raiden, and Judge Richard R. Townsend


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator