Opinion 76-1
January 30, 1976

Re: Canons 2B; 5C(1)(2)(3)

Dear Judge:


This is in response to your recent inquiry regarding several business arrangements entered into prior to receiving your appointment to serve as Circuit Judge. The Committee has reviewed your inquiry and is pleased to advise you as follows:

1. In regard to your status as a beneficiary in a Florida land trust where the trustee is a national bank wherein you exercise no managerial authority nor trustee responsibilities and other beneficiaries include former business associates and two former law partners and wherein you are a signatory together with other beneficiaries on a promissory note providing for regular interest payments, a majority of the Committee is of the opinion that your participation as a beneficiary is not inconsistent with the Code of Judicial Conduct.

Two members of the Committee expressed the view that your participation with other lawyers might conflict with Canon 5C(1) which provides, in part:

"The Judge should refrain from financial and business dealings that tend to ...involve him in frequent transactions with other lawyers or other persons likely to come before the Court on which he serves."

One of the members expressed a view about the possible application of Canon 5C(3), which provides:

" A judge should manage his investments and other financial interests to minimize the number of cases in which he is disqualified. As soon as he can do se without serious financial detriment, he should divest himself of investments and other financial interests that might require frequent disqualification."


One of the members called attention to that portion of the Commentary in Canon 2 which provides that a "judge...must therefore expect restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

One member cautioned that the judge should not serve as an advisor to the trust except insofar as it may apply to the disposition of his own interests.

2. In regard to your status as a trustee under the land trust established for the purpose of holding land out of state which land is sold to purchasers for use as recreation retreats and wherein the beneficiaries include yourself, former business associates and two former law partners and wherein you have already advised that you will not serve as trustee nor conduct business on behalf of the trust while serving as Circuit Judge, the response and comments of the Committee as set forth in your first inquiry are applicable herein.

3. With reference to your status as a partner with your wife and several business associates in the ownership and management of a warehouse and industrial park i which title to the property is in your name and your wife's name as tenancy by the entireties and wherein no actual management responsibility is exercised by yourself and your wife but instead direct daily management is the responsibility of your business associates and wherein you further indicate that you would recuse yourself from any proceedings involving tenants, mortgagees or other persons in the Industrial park that may come before your court, a majority of the Committee is of the opinion that you may continue to own and participate as a partner in this venture which you have described.

Two members of the Committee are of the opinion that this business venture conflicts with Canon 5C(2), which provides:

"Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should not serve as an officer, director, manager, advisor, or employee of any business."

Two members of the majority expressed a concern that this business venture might involve the judge in frequent transaction with lawyers who are likely to come before the court on which the judge serves.

One of the members called attention to that portion of the Commentary in Canon 2, which provides that a "judge...must therefore expect restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly."

4. With reference to your participation in the operation of a chain of retail dress shops, along with your wife, mother and aunt, all of which are owned by individual corporations but in turn are owned by a single parent company, but having advised the members of the firm that you will no longer serve as an officer or director of such companies and wherein occasions will arise where your wife or other members of your family will ask for business advise from time to time, the majority of the Committee is of the opinion that you may continue to give business advice to your relatives under those circumstances and conditions which you have described.

One member of the Committee expressed the view that while there is no prohibition to family advice, Canon 5C(2) would seem to prohibit advise on a regular basis and to the extent that a business advisor relationship was said to exist.

5. With reference to the termination of your partnership association and your acceptance of a fixed amount for your interest in your former law firm and the proportionate share of the fees earned prior to your elevation to the bench, the Committee finds that this arrangement is permissible under the Code and is consistent with Opinion 74-4 rendered on May 2, 1974.

We hope that the foregoing is responsive to your inquiries and will be of assistance to you.

Sincerely,


Gerald Mager
Chairman, Committee on Standards of Judicial Conduct