FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2003-02
Date of Issue: April 4, 2003

(1) RECENTLY ELECTED JUDGE REMAINING A MEMBER OF, CHAIRING COMMITTEES OF, AND HOLDING OFFICE IN THE EXECUTIVE COUNCIL OF THE TRIAL LAWYERS SECTION OF THE FLORIDA BAR.

(2) A JUDGE REMAINING A MEMBER OF THE AMERICAN BOARD OF TRIAL ADVOCATES. (ABOTA).

(3) A JUDGE REMAINING A MEMBER OF THE REAL ESTATE PARTNERSHIP THAT OWNS THE BUILDING WHICH THE JUDGE'S FORMER LAW FIRM RENTS OFFICES AND RECEIVING A DISTRIBUTION OF THE INCOME FROM THE REAL ESTATE PARTNERSHIP ON A REGULAR BASIS.

(4) A JUDGE RECEIVING PERIODIC PAYMENTS OR A NOTE FROM THE FORMER LAW FIRM FOR THE JUDGE'S EQUITY INTEREST IN SUCH FIRM.

 

ISSUES

(1) Whether a recently elected judge may remain a member of the executive council of the trial lawyers section of The Florida Bar. If the judge may remain a member of such council, (a) may the judge chair committees where the chairmanship is appointed by the chairperson of the section; and (b) is the judge prohibited from holding office where historically the chair of such council is involved in lobbying issues, but may not have to personally be involved in the actual lobbying.

ANSWER: Yes to all questions.

(2) Whether the judge may remain a member of the American Board of Trial Advocates (ABOTA).

ANSWER: Yes

(3) Whether the judge may remain a member of the real estate partnershi0p that owns the building which the judge's former law firm rents offices and, if so, may the judge continue to receive a distribution of the income from the real estate partnership on a regular basis.

ANSWER: Yes (4)

Whether the judge may continue to receive periodic payments from the former law firm for the judge's equity interest in such firm or in the alternative may the firm execute a note to pay the balance owed the judge.

ANSWER: Yes to either method of payment.

FACTS

The inquiring judge has been recently elected to the position of circuit judge. In the process of assuming the bench, the judge is preparing to leave his or her practice and partnership of 30 years, and several questions have arisen during this transition.

First the judge has been on the Executive Council of the Trial Lawyers Section of the The Florida Bar for several years. The judge was re-elected to the council for a term that will expire in June, 2004. The inquires that if permitted to remain a member, whether the judge may serve as a committee chair when appointed by the chairperson of the Section. The judge further inquires whether the judge is prohibited from holding office on the Council. The judge states that from past experience, officers of the Council seem to be required to be involved in lobbying issues before the Florida Legislature, although the officers may not have to personally be involved in the actual lobbying activities. The judge refers to this Committee's previous Opinions 84-13 and 94-44.

Second, the inquiring judge states that the judge is the past-president of a chapter of the ABOTA. The judge assumes that the judge may continue to be a member of ABOTA based on this Committee's Opinions 80-08 and 95-46. However the judge inquires whether there has been a change in the Committee's position on this issue.

Third, the judge states that the judge has been a partner in a law firm for 30 years. The firm rents its building from a real estate partnership, which is comprised of the judge, four lawyers in the firm, and a former partner of the firm. The firm pays a monthly rental fee to the partnership pursuant to the written lease. During the year, the profit is periodically paid to the six individuals of the real estate partnership. There are not present plans to liquidate the partnership, sell the building or change the written lease with the firm. The judge inquires as to whether it is permissible to remain a member of the real estate partnership, and continue to receive distribution of the income of the partnership (which income is solely generated by the rent paid by the firm) as a sitting judge.

Fourth, the judge is has an equity interest in the law firm. The exact value of that interest shall be set prior to the judge taking the bench. The judge will receive payment for the interest in the firm upon departure. The firm may need to make periodic payments on the value of the judge's equity. The judge inquires as to the appropriateness of receiving such payments or in the alternative whether the firm may execute a note to pay the balance owed. The judge states that those questions presume disqualification from any cases involving the former law firm or partners while payments are being made or are still due and owing.

DISCUSSION

Canon 4B of the Code of Judicial Conduct states a judge may speak, write, lecture, teach and participate in other quasi-judicial activites concerning the law, the legal system, and the administration of justice. Judges are encouraged to do these activities either individually or though a bar association, as time permits. See Fla.. Code of Judicial Conduct, Canon 4B Commentary. As the inquiring judge notes, this Committee has previously found that a judge could serve as Chair-Elect of the Family Law Section of The Florida Bar. See Fla. JEAC Op. 84-13; see also Fla. JEAC Op. 94-44 (opining that a judge may ethically serve as an appointed chair of a local bar association committee). Recently, this Committee has found that a judge may serve on the The Florida Bar Civil Procedure Rules Committee. See Fla. JEAC Op. 99-20. Therefore the inquiring judge may remain a member of the Executive Council of the Trial Lawyers Section of The Florida Bar and, as appointed, chair committees of the Council after assuming the bench.

Further the Committee has continuously stated that a judge may be a member of and chair such councils as long as the judge's involvement does not reflect on the judge's impartiality or neutrality as a judge. One of the reasons that this Committee has found that a judge should not hold office in a local bar association is because such an election gives the appearance of the judge exerting pressure on lawyers that must litigated before that judge. See Fla. JEAC Op. 94-44. Although the appearance may not be as prevalent with the Council, it still exists, especially if other members of the Council practice in the judge's circuit. Another concern of the Committee has been that officers of such associations may customarily have the function of lobbying for legislation which is an improper activity for a judge. See Fla JEAC Op. 84-13. The inquiring judge states that the officers of the Council, in past experience, are required to be involved in lobbying issues, but not personally involved in the actual lobbying. This Committee is unclear about, and the judge does not define, what activities comprise being "involved in lobbying issues." Thus the Committee cannot comment on this specific component of the judge's query, other than the judge should avoid involvement in any activity which might reflect on the judge's impartiality or neutrality. This Committee has not made a change in its advisory opinions regarding membership in ABOTA. The judge may remain a member of ABOTA. See Fla. JEAC Op. 95-46; see also Fla. Code of Jud. Conduct, Canon 5A. The Judge may continue to be a member of the real estate partnership that owns the building rented by the judge's former law firm, and may continue to receive periodic distributions of the income from the partnership. See Fla. JEAC Op. 81-11, 78-19 and 76-20. However the judge should disclose the relationship and, upon motion be recused from an cases involving the firm due to the ongoing landlord/tenant relationship, unless a proper remittal of disqualification has been executed in accordance with Canon 3F. See Fla. JEAC Op. 85-08; see also Fla. JEAC Op. 87-24, 91-26, 97-33 and 00-34 (amended). The judge should be mindful of the prohibition in Canon 5D(1)(b) and the directive of Canon 5D(4). The judge may receive periodic payments from the former law firm for the judge's equity interest in the firm or the firm may execute a note payable to the judge to pay the balance owed for the judge's equity interest. See Fla. JEAC Op. 00-34 (amended) and 96-26; see also Fla. JEAC Op. 93-38 (opining that a prospective judge selling a law practice should not profit from future judicial standing in the community). The judge should disclose the relationship and be recused from any case involving the firm due to the periodic payments from either method, unless a proper remittal of disqualification has been executed in accordance with Canon 3F. See Fla. JEAC Op. 00-34 (amended). The judge should remain attentive to the directive of Canon 5D(4).

 

REFERENCES

Florida Code of Judicial Conduct: Canons 3F, 4B & Commentary; 5A; 5D(1)(b); and 5D(4) Florida Judicial Ethics Advisory Committee Opinions: 76-20; 78-19; 81-11; 84-13; 85-08; 87-24; 91-26; 93-38; 94-44; 95-46; 96-25; 97-33; 99-20; and 00-34 (amended).

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The Judicial Ethics Advisory 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 by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact Judge Jeffrey D. Swartz, Chairman, Judicial Ethics Advisory Committee, Miami Beach District Courthouse, 1130 Washington Avenue, Miami Beach, FL 33139.

Participating Members:
JJudge Jeffrey D. Swartz, Judge McFerrin Smith, III, Judge Richard R. Townsend, Judge Charles J. Kahn, Jr., Judge Lisa Davidson, Judge Emerson Thompson, Judge Scott J. Silverman, Judge John G. Fletcher, Ervin Gonzalez, Esq. and Marjorie Gadarian Graham, Esq.


Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)