Opinion 81-5

March 22, 1981

Dear Judge:

This is in response to your inquiry of March 25th, 1981. You inquired whether you could act as resident agent for an ancillary estate. Enclosed is a copy of our Opinion 73-3 wherein we advised that appointment as ancillary administrator of an estate was consistent with the Code of judicial Conduct. however, of the six members of the Committee on Standards of Conduct Governing Judges responding to your inquiry, four were of the opinion that it was improper for you to act as resident agent for an estate. The reasons for the majority opinion are as follows:

"Canon 5(d) of the Code of Judicial Conduct, as an exception to the general rule to the contrary, permits a judge to serve as a fiduciary 'for members of his family'. Because (your) only relationship to the decedent is that she was a friend of (your) mother's, (you) do not fall within that enumerated exception. Therefore (you) should not become an agent for the ancillary personal representative because it will tend to permit (you) to do indirectly what (you) could not do directly and further created the appearance of impropriety banned by Canon 2 for the following reasons:"

"(a) Any ancillary personal representative must employ a member of the Florida Bar unless the personal representative is the sole interested party in the decedent's estate. State ex rel Falkner v. Blanton, 297 So2d 825 (Fla. 1974). Ordinarily, therefore, the attorney for the fiduciary as resident agent as expressly permitted by Florida Rule of Probate and Guardianship 5.110 (b) unless the attorney is not a resident of the State of Florida. Consequently, there is no need for (you) to accept this appointment unless the attorney is not a resident of the State of Florida.

(b) Were (you) to accept the appointment as resident agent, it might create the appearance that (you are) aiding a non-resident attorney, and thereby circumvent Falkner v. Blanton, supra, even though the non-resident ancillary personal representative might be a member of the Florida Bar.

(c) If, however, the attorney for the estate is not in fact a member of the Florida Bar, then (you) would be directly aiding and abetting that attorney in the unauthorized practice of law.."

Yours truly,

James T. Carlisle, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members
Sid White, Clerk of the Supreme Court
Mr. William C. Clark, Chairman, Florida Judicial Qualifications Commission
Mrs. Linda H. Yates, Managing Editor, Florida Bar Journal
Hon Howard T. Markey, Chairman, Ethics Advisory Panel Judicial Conference of the U.S.
All references to the inquiring judge deleted

Participating members: Judges Booth, Carlisle, Hewitt, Letts, Nesbitt and Samuel Powers, Attorney.