Opinion 82-04

March 15, 1982

Dear Judge:

This is in response to your inquiry of November 24, 1981. Prior to taking the bench on behalf of a client you held title to land as trustee. You obtained mining permits on the property. The property is being held for sale. The permits are difficult to obtain and it would perhaps jeopardize the permits be (sic) re-requesting assignments to a new trustee. You would not be required to give legal advice concerning the land nor engage in litigation. Your only function would be to sign a deed in the event the sale is negotiated. You inquire as to the propriety of this activity in light of Canon 5D.

Of the nine members responding to your inquiry, all were of the opinion that the activity violates Canon 5D.

Canon 5D provides that a Judge should not serve as trustee except for members of his family. The framers of the code were concerned about the impact of a Judge representing a party in Court and that if her were permitted to do so it might appear he had an advantage before a fellow judge. They decided that the danger of the appearance of an advantage would be sufficiently real to justify severe limitations on fiduciary activity. While in your situation there is little likelihood that you would ever appear in Court and would confine your duties to those any layman could perform it is nevertheless the unanimous opinion of the members of the Committee on Standards that the activity violates the Canon of Ethics.

Perhaps it would have been possible to draft the code in such a way as to permit this type of fiduciary activity but it is difficult to describe those situations prospectively and perhaps impossible to predict when it might be necessary for the trustee to appear as a party. While this proposed activity is in itself innocent, and perhaps praisworthy (sic), the framers of the code perhaps deliberately, painted with a very broad brush.

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. Mark Hulsey, Chairman, Florida Judicial Qualifications Commission
Linda H. Yates, Managing Editor, Florida Bar Journal
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the U.S.
All references to the inquiring judge deleted

Participating members: Carlisle, Booth, Green, Jr., Hewitt, Nesbitt, Letts, O'Connell, Richardson, Turner and Samuel Powers, Attorney