Note: Opinion 2010-25 recedes from this opinion

March 20, 1990

Opinion 90/9
Canons 2, 3 and 5
Ownership of stock - recusal

Dear Judge

You have presented the Committee with two questions which I have restated for the purpose of this advisory opinion.

Inquiry #1
You and your wife own stock in various publicly held companies. The degree of ownership is minuscule and neither you nor your wife occupies a managerial or other role in the corporate entities. You have formulated a notice which you have posted in your office advising all parties and their attorneys that you own stock in various corporations. You have advised such persons that there is a technique permitting them to achieve disclosure of such ownership in determining whether recusal is warranted. You ask whether the steps you have taken satisfy Canons 2 and 3.

In response to Inquiry #1, the Committee agrees that you have gone "the extra mile" in seeking compliance with Canons 2 and 3.

Inquiry # 2
This inquiry stems from your ownership of stock in banks having trust departments. Because of your assignment to the Probate, Guardianship & Trust Division of the circuit court you are concerned with an appearance of impropriety in the circumstance where the trust department of a bank seeks fees in connection with the administration of trusts subject to your control. You have transferred your stock ownership to your adult children.

The disclosure statement posted in your office, referred to in Inquiry #1, does not cover the questions raised in #2; the notice is confined to ownership of stock by your wife.

Inquiry #2 is composed of several questions arising from Canons 2 and 3 and its subparts. It is the Committee's opinion that the facts presented in Inquiry #2 do not require disqualification. The assets transferred to your adult children, who no longer reside in your home, are of minimal significance with the result that any benefit flowing to the bank from its status as a trustee over an estate under your control could not "substantially affect the value of the interest, " held by your children. See Canon 5C.

It would not be inappropriate, however, for you to make parties aware of your attenuated relationship to the banks. Your inquiry does not disclose the number of banking institutions whose trust departments might be selected for the administration of an estate. It seems unlikely that your children would have a stock interest in every bank having a trust department within your territorial jurisdiction. Thus, an announcement to the parties, out of an abundance of caution, would probably not result in excessive recusal.

Three members of the Committee, however, have indicated a concern that you stay alert to the possibility of litigants who attempt to engage in "judge shopping."

The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges 327 So2d 5 (Fla. 1976).

Cordially yours,

Richard H. Frank, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members

Participating Members: Judges Green, Tolton, Goldstein, Dell, Booth, Doughtie,Frank, Simons, Shutter and Clarke, Esquire.

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
Judson Orrick, Managing Editor, The Florida Bar Journal
Brooke S. Kennerly, Executive Director, Judicial Qualifications Commission.
Hon. Walter K. Stapleton, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Deborah Solomon, American Judicature Society
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida
Mr. Richard Kuhn, Court Administrator, Lee County
Hon. Thomas H . Barkdull , Jr ., Third District Court of Appeal
Lynda Glyman, Center for Professional Responsibility, American Bar Association