FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-30
Date of Issue: October 30, 2018

ISSUES

1. Whether a general magistrate may maintain an active Florida real estate license.

ANSWER: Yes.

2. Whether a general magistrate may act as a real estate agent in a transaction concerning the sale of the magistrate's current home.

ANSWER: Yes, subject to compliance with Canons 1, 2A, and 3.

3. Whether a general magistrate may act as a real estate agent in a transaction concerning the purchase of real property for the magistrate's personal use.

ANSWER: Yes, subject to compliance with Canons 1, 2A, and 3.

4. Whether a general magistrate may act as a real estate agent for a family member in a transaction concerning the sale or purchase of real property.

ANSWER: Yes, subject to compliance with Canons 1, 2A, and 3.

5. Whether a general magistrate may act as a real estate agent in a transaction concerning the sale or purchase of property for the general public.

ANSWER: Yes, subject to compliance with Canons 1, 2A and 3.

 

FACTS

The inquiring general magistrate ("GM") holds an active real estate license as a sales associate which was obtained prior to the GM's appointment as a general magistrate. The GM states that this license is active through a private, third-party broker business. The GM is an independent contractor of this business and only receives remuneration in connection with successful closings. The GM's employment as a general magistrate is at-will and subject to the pleasure of the chief judge who hired the GM. The GM states that there are no contracts apart from an employee handbook governing the GM's employment by the circuit court.

The GM wishes to know whether the GM may maintain the GM's sales associate real estate license, and if so to what extent the GM may use this license in connection with the sale of a current home, the purchase of real property for the GM's personal use, real property transactions by or on behalf of family members, and real property transactions for the general public.

 

DISCUSSION

The application of the Code of Judicial Conduct to court employed general magistrates is somewhat unique. In 1994, the Florida Supreme Court adopted the current Code of Judicial Conduct. See In re Code of Judicial Conduct, 643 So. 2d 1037, 1037 (Fla. 1994). The adopted code was modeled after the American Bar Association's 1990 Model Code of Judicial Conduct, and it included a new section entitled "Application of the Code of Judicial Conduct." This section clarifies that the Code of Judicial Conduct is applicable to "justices of the Supreme Court and judges of the District Courts of Appeal, Circuit Courts, and County Courts." Separate parts of the Application section specify which canons are applicable to retired or senior judges and civil traffic infraction hearing officers. General magistrates are addressed within the following paragraph of the Application section:

Anyone, whether or not a lawyer, who performs judicial functions, including but not limited to a magistrate, court commissioner, special master, general master, domestic relations commissioner, child support hearing officer, or judge of compensation claims, shall, while performing judicial functions, conform with Canons 1, 2A, and 3, and such other provisions of this Code that might reasonably be applicable depending on the nature of the judicial function performed.

Any judge responsible for a person who performs a judicial function should require compliance with the applicable provisions of this Code.

To date, neither the Florida Supreme Court nor the Committee have squarely addressed which, if any, of the Canons besides 1, 2A, and 3 "might reasonably be applicable" to general magistrates or under what circumstances.

The nature of the GM's employment by the court is an important consideration in determining which canons, other than Canons 1, 2A, and 3, could be applicable to the general magistrate. From what the inquiring GM has informed us, it does not appear that the GM's employment as a general magistrate implicates any canons apart from Canons 1, 2A, and 3 with respect to the GM's work. The GM's employment as a general magistrate is not conditioned upon the GM's agreement to be bound by the Code of Judicial Conduct. Apart from an employee handbook-which does not include any specific references to general magistrates or judicial canons-the GM's employment by the circuit court is apparently not subject to any written or contractual requirements at all. And there is no indication that the inquiring GM's work as a general magistrate is unique from the work performed by other general magistrates so that other canons of the Code "might reasonably be applicable" pursuant to the Application section.

Therefore, to the extent Canons 1, 2A, and 3 are the only applicable canons governing this general magistrate, the answer to the GM's inquiries would appear to be a qualified "yes." The GM must take care that any real estate work the GM may perform does not give rise to a violation of any of these canons. For example, the GM's work as a real estate agent, whether it is on the GM's own behalf or on behalf of the GM's family or the public, must not interfere with faithfully discharging the GM's duties as a general magistrate. See Fla. Code of Jud. Conduct, Canon 3A ("The judicial duties of a judge take precedence over all the judge's other activities."); Fla. Code of Jud. Conduct, Canon 3C(1) ("A judge shall diligently discharge the judge's administrative responsibilities . . ."). Likewise, the GM's work as a real estate agent must be conducted in a manner that "promotes public confidence in the integrity and impartiality of the judiciary." See Fla. Code of Jud. Conduct, Canon 2A. The GM could not perform work as a real estate agent during normal working hours or in court facilities; nor could the GM solicit or accept real estate representation for any party or attorney appearing before the GM. See Fla. Code of Jud. Conduct, Canon 1; In re Hawkins, 151 So. 3d 1200, 1212-13 (Fla. 2014) (holding that a judge's promotion of her self-published book and availability for speaking engagements violated Canons 1, 2A and 5D of the Code of Judicial Conduct). Furthermore, the GM would be disqualified from presiding over any matter in which the GM, as a real estate agent, is representing any party or an attorney for any party (whether a buyer or a seller) in connection with any potential real estate transaction. See Fla. Code of Jud. Conduct, Canon 3E(1)(c). And the GM could not preside over any matter that would involve any real estate transaction in which the GM has participated. See Fla. Code of Jud. Conduct, Canon 3E.

With those qualifications, the Committee is of the opinion that the inquiring general magistrate may maintain and use a sales associate real estate license in the manner described above.

 

REFERENCES

In re Code of Judicial Conduct, 643 So. 2d 1037, 1037 (Fla. 1994); In re Hawkins, 151 So. 3d 1200 (Fla. 2014); In re Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994)
Fla. Code Jud. Conduct, Canons 1, 2A, 3A, 3C(1), 3E, 3E(1)(c)
Fla. Code Jud. Conduct, Application

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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 James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.


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