FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-12
Date of Issue: June 24, 2017

ISSUE

Whether a judge may serve as a co-trustee, of an irrevocable trust created by the judge’s brother-in-law, who resides in Florida, but does not reside in the circuit wherein the judge presides?

ANSWER: Yes, provided the judge maintains a close familial relationship with the judge’s brother-in-law.

FACTS

The inquiring judge presently presides over probate, guardianship, trust and foreclosure cases. The judge’s sister has been married to her husband (the judge’s brother-in-law) for 57 years. The judge was eight years old when the judge’s sister and brother-in-law were married. The judge’s brother-in-law was in business with the judge’s father until the judge’s father’s death in 1993. The judge’s brother-in-law is considered the patriarch of the family, and the judge routinely consults the brother-in-law for advice and perceives him as a father figure.

The brother-in-law created an irrevocable trust naming himself as settlor. The judge is not a beneficiary of the trust, although the judge’s sister, the sister’s children, and the sister’s grandchildren are potential beneficiaries.

The judge’s brother-in-law has requested that the judge, along with the judge’s sister and the brother-in-law’s attorney, be trustees of this trust. The judge’s brother-in-law, sister, and their attorney live in Florida, but they do not live in the circuit wherein the judge presides.

DISCUSSION

Canon 5E (1) 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.

By its express terms, this Canon prohibits a judge from serving as an executor or trustee for a non-family member, and the Judicial Ethics Advisory Committee has consistently interpreted this Canon to prohibit a judge from serving in a fiduciary capacity for a non-family member. See Fla. JEAC Ops. 74-10, 75-16, 75-19, 82-4, 83-3, 91-16, 92-18, 97-4, 03-12, 05-3.

The pertinent question is whether the judge’s brother-in-law qualifies as a member of the judge’s family as defined by the Code of Judicial Conduct. The definitions section of the Code, as set forth in its preamble, defines a “member of the judge’s family” as follows:

“Member of the judge’s family” denotes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship (emphasis added).

There have been a number of JEAC Opinions that have addressed whether certain persons fall within the definition of “member of the judge’s family.” Because each turned on the various factual scenarios presented, these opinions will be addressed.

In Florida Judicial Ethics Advisory Committee Opinion 95-7, the Committee determined that the judge’s wife’s grandmother fell within the definition of “member of the judge’s family,” and opined that the judge could serve as trustee of her estate.

In Florida Judicial Ethics Advisory Committee Opinion 09-18, the Committee determined that a judge may serve as trustee of a trust created by the judge’s grandfather for the benefit of the judge’s uncle. In that opinion, a majority of the Committee concluded that since the grandfather was the settlor of the trust, it was the grandfather’s trust, and the uncle was merely the beneficiary of the trust. A minority of the Committee was of the opinion that the trust became the uncle’s trust because the settlor/grandfather had died, and, therefore, the judge/trustee/fiduciary and the uncle must maintain a “close familial relationship” for the uncle to fit the Code’s definition of “member of the judge’s family.”

In Florida Judicial Ethics Advisory Committee Opinion 03-12, the Committee determined that a circuit judge may not remain as trustee of an irrevocable trust set up by the judge’s former father-in-law for the former father-in-law’s wife. The Committee determined that because the judge was divorced from his former wife, he was no longer acting on behalf of a person who is a member of the judge’s family.

A significant minority of the Committee dissented from the majority opinion suggesting that the judge’s former father-in-law maintained a close familial relationship with the judge, irrespective of the divorce. The minority determined that it should be for the judge to decide, based upon the unique facts of the judge’s family relationships, whether the judge continued to maintain a close familial relationship with his former father-in-law. If in fact he did, the minority opined that he may ethically accept the duties as trustee. If not, he should decline.

In Florida Judicial Ethics Advisory Committee Opinion 04-15, the Committee determined that a judge’s spouse’s first cousin was not a “member of the judge’s family” to whom the judge could give advice concerning his role as personal representative of his spouse’s aunt’s estate, and for whom the judge could prepare documents for filing in probate proceedings. The Committee determined that while the judge and the judge’s spouse’s first cousin enjoyed a close familial relationship, that because such relationship was not comparable to the judge’s relationship with the judge’s spouse, child, grandchild, parent, or grandparent, and because the spouse’s cousin did not reside in the judge’s household, the spouse’s first cousin did not qualify as a “member of the judge’s family” (emphasis added).

Florida Judicial Ethics Advisory Committee Opinion 04-15 seems to constrict the plain language of “member of the judge’s family” as defined in the Code. Although “member of the judge’s family” denotes a spouse, child, grandchild, parent, or grandparent, it also includes other relative or person with whom the judge maintains a close familial relationship (emphasis added).

There is no question that the Code does not allow a judge to act in a fiduciary capacity for every relative of the judge. There are clearly instances where various relatives of the judge would not fall within the definition of “member of the judge’s family.”

The facts of the pending inquiry would suggest that the inquiring judge’s brother-in-law is an “other relative or person with whom the judge maintains a close familial relationship.” The inquiring judge has known the brother-in-law since the judge was eight years old and thought of him more as a brother than a brother-in-law. The brother-in-law and the judge’s father were in business together, and upon the judge’s father’s death, the brother-in-law took on the role of patriarch for the family. The judge routinely consults the brother-in-law for advice and looks to him as a father figure. As such, based upon these facts, the judge’s brother-in-law fits within the definition of “member of the judge’s family” as contemplated by the Code.

To the extent that Florida Judicial Ethics Advisory Committee Opinion 04-15 limits a judge’s family members to a spouse, child, grandchild, parent or grandparent, or someone who resides in the judge’s household, the committee recedes from the opinion. Whether a relative or a person maintains a close familial relationship with a judge is a question of fact. See Fla. JEAC Op. 10-16. It will be for the judge to decide, based upon the unique facts of the judge’s family relationships, whether the judge maintains a close family relationship with a particular individual as defined by the Code.

Although it is the opinion of the Committee that the judge may serve as co-trustee of the judge’s brother-in-law’s trust, the judge may do so only if such service will not interfere with the proper performance of the judge’s judicial duties. See Fla. Code Jud. Conduct, Canon 5E (1).

In addition, a judge shall not serve as 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. See Fla. Code Jud. Conduct, Canon 5E (2).

Further, the same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity. See Fla. Code Jud. Conduct, Canon 5E (3). The comments to Canon 5E (3) provide that the restrictions imposed by this Canon may conflict with the judges’ obligation as a fiduciary. For example, a judge should resign as trustee if detriment to the trust would result from divestiture of holdings, the retention of which would place the judge in violation of Canon 5D (4).

 

REFERENCES

Fla. Code Jud. Conduct, Canons 5E(1), (2) & (3); D (4)
Fla. JEAC Ops. 74-10; 75-16; 75-19; 82-4; 83-3; 91-16;, 92-18; 95-7; 97-4; 03-12; 04-15; 05-3; 09-18; 10-16.

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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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Spencer D. Levine, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Blvd., West Palm Beach, FL 33401

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Michael Andrews, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


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