FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-15
Date of Issue: May 5, 2004

ISSUES

Whether a judge's spouse's first cousin is a member of the judge's family to whom the judge can give advice concerning his role as personal representative of his spouse's aunt's estate and for whom the judge can prepare documents for filing in probate proceedings?

ANSWER: No, because the spouse's cousin does not live in the judge's household and because, while the judge and the judge's spouse's first cousin enjoy a close familial relationship, it is not comparable to the judge's relationship with the judge's spouse, child, grandchild, parent, or grandparent.

FACTS

The inquiring judge's spouse's aunt was a widow, when she died childless, bequeathing a liquid estate free of debt to the judge's spouse, the spouse's sister, two of the spouse's first cousins and one of the spouse's first cousins once removed, share and share alike. The will names one of the judge's spouse's first cousins personal representative.

The inquiring judge's spouse was "quite close" to the spouse's aunt, and the inquiring judge was a contingent beneficiary under the spouse's aunt's will. The inquiring judge asks whether, in order to save fees and costs for the beneficiaries, it would be proper for the judge to prepare -- but not to file -- probate documents and advise the personal representative on estate matters.

The inquiring judge has sat as a senior judge in the circuit court in and for the county in which the will is to be probated on two or three occasions in the past several years, and more frequently in courts in the same circuit but outside the county in which the will is to be probated.

DISCUSSION

"A judge shall not practice law." Code of Judicial Conduct, Canon 5(G). "Notwithstanding this prohibition, a judge may . . . without compensation, give legal advice to and draft or review documents for a member of the judge's family." Id. As the official commentary to this provision states,

The Code allows a judge to give legal advice to and draft legal documents for members of the judge's family, so long as the judge receives no compensation. A judge must not, however, act as an advocate or negotiator for a member of the judge's family in a legal matter.

A judge may give legal advice to a member of the judge's family and draft or review documents for a member of the judge's family as long as the judge does so without compensation and does not act as advocate or negotiator on behalf of the family member and as long as doing so does not "interfere with the proper performance of judicial duties." Code of Judicial Conduct, Canon 5(A)(3).

At issue is whether the spouse's first cousin is a member of the judge's family. The issue is not whether the judge or the judge's spouse was close to the deceased, but whether the spouse's first cousin is a "member of the judge's family," as defined by the Code of Judicial Conduct. It is not material that the judge's spouse is one of the beneficiaries. See generally Florida JEAC Opinion 2003-12.

Nothing in the judge's inquiry as originally propounded answered the question whether the judge's spouse's first cousin is a member of the judge's family.

"Member of the judge's family" denotes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship.

Code of Judicial Conduct, Definitions. Unless the spouse's first cousin resides in the judge's household, and is therefore a "[m]ember of the judge's family residing in the judge's household," as defined by the Code of Judicial Conduct ("any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides in the judge's household"), the Code contemplates a close familial relationship of the kind that exists within the immediate family.

In these circumstances, the chairman of the Judicial Ethics Advisory Committee contacted the inquiring judge. The inquiring judge advised the chairman that the judge's spouse's first cousin was not a member of the judge's household and that, while the inquiring judge enjoys a close familial relationship with the judge's spouse's first cousin, the relationship is not of the same kind as a relationship with an immediate family member. Accordingly, the exception to the prohibition against practicing law does not apply, and the judge should refrain from offering legal advice and assistance to the judge's spouse's first cousin.

REFERENCES

Code of Judicial Conduct: Definitions and Canon 5(A)(3), 5(G), and 5(G) Commentary.

Florida Judicial Ethics Advisory Committee Opinion: 2003-12.

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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 Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Melanie May, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Jeffrey D. Swartz, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)