FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2015-07
Date of Issue: April 29, 2015

ISSUE

May a senior judge may serve as the officer of the professional association (the “P.A.”) of the judge’s deceased spouse’s solo law practice in order to file a corporate report as part of the process of closing the practice.

ANSWER: Yes.

FACTS

The inquiring senior judge previously sought an opinion from the Committee concerning whether the judge, as personal representative of the estate of the judge’s spouse, could engage in certain activities necessary to close the deceased spouse’s solo law practice, a P.A. Specifically, the judge inquired whether it was permissible under the Florida Code of Judicial Conduct to hire staff to bill accounts receivable, become a signor on the firm’s operating account and trust account, hire an attorney, and purchase tail insurance for the P.A. The Committee advised that the judge could engage in the proposed activities. See Fla. JEAC Op. 14-22.

In this follow-up inquiry, the judge states that a corporate report for the P.A. must be filed in order to continue to collect accounts receivable and close the business part of the P.A. The judge further states that there is no practice of law operating in the P.A., as all cases have been turned over to other attorneys or closed, and that as personal representative, the judge is “working on closing out [the] practice, collecting receivables and liquidating the office furniture, equipment.” Specifically, the judge inquires whether it is permissible under the Code to “be the corporate officer(s) for [the] purpose of the [P.A.’s] annual report.”

 

DISCUSSION

As the Committee noted in Fla. JEAC Op. 14-22, the judge has “taken appropriate, sufficient steps to avoid engaging in the practice of law,” and based on the facts provided in the present inquiry, the judge seeks to file the P.A.’s annual report as part of the process of selling the P.A.’s assets and collecting receivables. As a result, the filing of the annual report is merely a continuation of the closing-down activities previously approved in Fla. JEAC Op. 14-22. The issue presented, therefore, is limited to whether the judge may serve as the officer of the P.A.1 

A review of Canon 5D(3) reveals that the judge may serve as the corporate officer of the judge’s deceased spouse’s P.A., where the purpose is to file an annual report as part of closing down the law practice. Canon 5D(3) states, in part:

(3) A judge shall not serve as an officer, director, manager, general partner, advisor or employee of any business entity except that a judge may, subject to the requirements of this Code, manage and participate in:
(a) a business closely held by the judge or members of the judge’s family . . . .

The P.A., a solo law practice of the judge’s spouse, is clearly a business closely held by a member of the judge’s family, and the fact that the judge’s spouse is deceased does not alter that conclusion. See Fla. Code Jud. Conduct, Definitions (defining members of the judge’s family as including a spouse).

Indeed, the issue presented is directly addressed by Fla. JEAC Op. 08-25, which held that a judge may serve as an officer or director of a closely held family corporation. As the Committee reasoned, the language in Canon 5D(3) “authorizing a judge to ‘manage and participate in’ a business closely held by the judge or members of the judge’s family includes participation as an officer, director, manager, general partner, advisor or employee of a closely held family corporation. Any other interpretation would defy logic.” See also Fla. JEAC Op. 14-27 (judge may own an interest along with partners in an LLC which owned a building leased to members of the judge’s former law firm); Fla. JEAC Op. 86-11 (judge may serve as chairman of the board and director in closely held family corporation; decided under Canon 5C(2) of 1985 version of Code of Judicial Conduct). The Committee notes that the instant opinion and Fla. JEAC Op. 08-25 would overrule this Committee’s prior opinion in Fla. JEAC Op. 97-35, which found that a judge may “manage and participate” in a corporation in which the judge was the sole shareholder, but that “the judge may not serve as an officer, director, manager, general partner, advisor or employee of the corporation.”

For the above reasons, the judge may serve as the corporate officer of the judge’s deceased spouse’s P.A. for the purpose of filing the P.A.’s annual report, a step the judge states is necessary to the process of closing the law practice previously approved in Fla. JEAC Op. 14-22.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 5D(3), 5G, Definitions.

Fla. JEAC Ops. 86-11; 97-35; 06-01; 08-25; 14-22; 14-27.

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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, Suite202, Tallahassee, Florida 32312.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge T. Michael Jones, Judge Barbara Lagoa, Judge Spencer D. Levine, 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

 

1. The Committee is aware that a judge may not own a professional association organized for the purpose of practicing law. See Fla. Code Jud. Conduct, Canon 5G; Fla. JEAC Op. 06-01. Under the facts provided, there is no indication that the judge is the owner of the judge’s deceased spouse’s P.A.