FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-13
Date of Issue: June 24, 2017

ISSUE

May a judge serve as the executor of an estate, a guardian, and/or a trustee on behalf of close relatives?

ANSWER: Yes, so long as the service will not interfere with the proper performance of judicial duties and the activities do not pose a likelihood of litigation before the court on which the judge serves.

 

FACTS

The inquiring judge, who is now retired but continues to serve as a Senior Judge, has been confronted with a rather tragic family situation. The judge was named as executor1 in the wills of the judge’s sister and brother-in-law. The brother-in-law recently died and the sister has been diagnosed with dementia and is unable to handle financial decisions. This unfortunate occurrence will call for the appointment of a guardianship. Finally, the judge likely will need to serve as trustee for the sister’s disabled son. All of the judge’s relatives reside in a different state and own no assets in Florida. The judge inquires whether the Code of Judicial Conduct forbids serving in the capacity of executor, guardian, and/or trustee.

 

DISCUSSION

Judges’ extrajudicial activities are governed by Canon 5 of the Code of Judicial Conduct. In general, Canon 5 exists to deter judges from such undesirable actions as cashing in on the prestige of their office, detracting from the responsibilities of their profession, and - most relevant to the present inquiry - necessitating frequent disqualification. Canon 5E prohibits judges from serving in a fiduciary capacity such as an “executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary” with the exception of family members or their estates. Even in that situation, however, judges are cautioned that such service would “interfere with the proper performance of judicial duties” or result 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.”

Based on the information provided by the inquiring judge this Committee believes the contemplated activities would be permissible under Canon 5E. Among the factors that have led the Committee to this conclusion are (a) the closeness of the familial relationship; (b) the fact no other relatives appear to be qualified to provide the assistance; (c) the fact, noted above, that the relatives do not live in Florida, thus eliminating the likelihood of local court proceedings; and (d) the fact the relatives’ assets and investments are fairly concentrated, thus helping to minimize the judge’s time.

It should be noted that this Committee has chosen to draft this opinion as if the inquiry had come from a judge still on active service. As noted in Florida Judicial Ethics Advisory Committee Opinion 14-22, Canon 5E does not apply to “[a] retired judge eligible to serve on assignment to temporary judicial duty, hereinafter referred to as ‘senior judge.’” See Fla. Code of Jud. Conduct, Application of the Code of Judicial Conduct.

 

REFERENCES

Fla. Code of Jud. Conduct, Canon 5E; Application of the Code of Judicial Conduct

Fla. JEAC Op. 14-22

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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

 

1. We employ this term in lieu of “personal representative” because it is used in the state where the judge’s family members reside.