May 21, 1985

Opinion No. 85/8
Canon 5C

In your inquiry, you state that, in 1979 (prior to your becoming a county judge in 1985), you purchased a law office building and lot from a local attorney, giving back a purchase money note and mortgage, and that the county leased from you approximately one-half of the building. After becoming county judge in 1985, the attorney from whom you purchased the property rented a portion of the building previously used by you, and he now uses that for his law office. Both the attorney and the county pay rent, and you continue to pay the attorney under the purchase money note and mortgage. You inquire if any problem is presented by the above arrangements, and, if so, what should be done to resolve the situation.

Canon 5C precludes financial dealings reflecting adversely on the impartiality of the judge or that involve the judge in frequent transactions with lawyers or persons likely to come before the court on which he serves. This Canon provides that the judge should manage his investments and other financial interests to minimize the number of cases in which he is disqualified. Canon 5C does not, however, require that a judge refrain from all investments or other remunerative activities with attorneys, as this Committee has held in a number of prior opinions: Opinion 76/20 (no impropriety in a judge owning real and personal property in partnership with an attorney); Opinion 81/11 (judge could receive his share of rent from investments owned by judge and former members of the judge's professional association); Opinion 74/7 (judge's receipt of law partnership dissolution payment, in set amount, did not require his recusal); Opinion 83/2 (joint venture for development of property with lawyer held okay); and Opinion 82/14 (joint ownership of land to be used for building a vacation cottage with lawyer did not require recusal.) However, the Committee was closely divided in Opinion 82/12, where the judge co-authored law books with an attorney and, with other shareholders , owned and operated a motel with the attorney. The majority held he was not required to recuse himself when members of the firm appeared before him, although he should when his business partner appeared before him. The minority view was that he must recuse himself in both instances or divest himself of the business interest.

The majority of the Committee, six of the nine members participating, both that there is no impropriety in your financial transactions with the attorney but that, in view of the extent of this relationship, both tenant/landlord and creditor/debtor, you should recuse yourself and not sit on cases involving this attorney.

Three of the members are of the view that it would be sufficient for your to disclose the relationship with the attorney to the parties and offer to recuse yourself in cases involving that attorney. One of the members points out that the attorney in question may be the only attorney in the county and that this may create a hardship situation, calling into play Canon 5C(3), which requires that, as soon as a judge can do so "without serious financial detriment, he should divest himself of investments or other financial interest which might require frequent disqualification."

All of the members of the Committee except one directed their responses to your business dealings with the attorney and did not address the possible conflict arising by your ownership of property which is leased to the county. Although generally the same rules would pertain, more information is needed on that part of your inquiry in order to give a specific recommendation.

One member of the Committee points out that renting of space to the county may give you a "vested interest" in increasing the fine and forfeiture fund of the county, and may subject you to criticism as having a conflict of interest as a county judge. This point of your inquiry was not addressed by the remaining members of the Committee, and, if you wish to supply addition information so that it can be determined, we will be glad to assist you in this regard.

The Committee thanks you for your inquiry and hopes that this response has been of assistance to you.

Sincerely,



Anne. C. Booth, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members

Participating members: Judges Booth, Blanchard, Goldstein, Turner, Tedder,
Green, Grube, Letts and Attorney M. Craig Massey

All reference to the inquiring judge is deleted from the copies sent to the following individuals.

Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Kathleen T. Phillips, Esq., Chairman, Judicial Qualifications Commission.
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida