FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2007-10
Date of Issue: May 11, 2007

ISSUE

If the local legal aid leases an office building owned by a sitting circuit court judge, is disqualification required whenever lawyers from the local legal aid appear before the judge?

ANSWER:  Yes, a judge is prohibited from engaging in financial and business dealings with lawyers likely to come before the court on which the judge serves.  Thus, a judge must disqualify himself or herself given these circumstances unless the parties agree to waive the judge’s disqualification pursuant to Canon 3F of the Code of Judicial Conduct.

FACTS

The inquiring judge was recently appointed to the circuit court bench.  The judge is currently in the process of closing the judge’s private law practice which is located in an office building owned and maintained by the judge. Upon assuming the bench, the inquiring judge will be handling a civil trial docket, including some domestic violence cases.  The local Legal Aid has expressed an interest in leasing the judge’s office building.  Legal Aid attorneys are likely to appear before the judge. The inquiring judge is interested in leasing his building to Legal Aid, but is concerned that the arrangement could present a conflict requiring disqualification.

DISCUSSION

Canon 5 of the Code of Judicial Conduct establishes the standards a judge must follow in the performance of his or her extrajudicial financial and business activities.  Although Canon 5D(2) allows a judge to hold and manage investments, including real estate, the judge may only do so subject to the requirements of the Code of Judicial Conduct.  Specifically, Canon 5D(1)(b) provides that “[a] judge shall not engage in financial and business dealings that . . . involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.” 

Canon 5D(4) requires that the judge manage his or her investments and other financial interests to minimize the number of cases in which the judge is disqualified.  Because judges must take appropriate action to minimize the need for disqualification, the judge is required to divest himself or herself of investments and other financial interests that might require frequent disqualification “[a]s soon as the judge can do so without serious financial detriment.”  Id. 

This Committee has previously addressed the ethical issues involving a judge leasing real property to lawyers who are likely to appear before the judge.  In all instances, the Committee has concluded that when a landlord/tenant relationship  exists between a judge and an attorney-tenant who appears before that judge, it creates a conflict of interest requiring disqualification. 

In Fla. JEAC Op. 97-33, we addressed the propriety of a judge renting office space under a “blind trust” to lawyers who were likely to come before the court in which the judge served.  The Committee concluded that the relationship caused a conflict of interest requiring disqualification of the judge.  The Committee found that even though the judge created a “blind trust” in order to preclude the judge’s involvement in the management of the office building, this “blind trust” did not insulate the judge from the conflict articulated in Canon 5.  Thus, the Committee concluded that the judge was required to disqualify himself unless the judge complied with all of the procedures set forth in Canon 3F by, inter alia, disclosing on the record the basis of the judge’s disqualification and the parties agreeing in writing to waive the disqualification.  Similarly, in Fla. JEAC Op. 85-08, the majority of the Committee found that although it was not improper for a judge to lease real property to an attorney for use as office space, the tenant/landlord and creditor/debtor relationship did create a conflict of interest requiring the judge to recuse himself or herself from sitting on cases involving that particular attorney. 

Thus, regarding the present inquiry, absent remittal of disqualification after full disclosure in accordance with Canon 3F, disqualification of the inquiring judge is required whenever an attorney/tenant appears before the judge since the judge’s impartiality might reasonably be questioned.  See Fla. Code Jud. Conduct, Canon 3E(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”).  The inquiring judge is further cautioned that if the judge is unable to minimize the number of cases wherein disqualification is required as a result of renting the office building to attorneys that appear before the judge, the judge must divest himself or herself of the office building as soon as the judge can do so without serious financial detriment.  See Fla. Code Jud. Conduct, Canon 5D(4).

REFERENCES

Fla. Code Jud. Conduct: Canons 3F, 3E(1), 3F, 5, 5D(1)(b), 5D(2), 5D(4).

Florida Judicial Ethics Advisory Committee Opinions: 97-33 & 85-08.

_____________

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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Robert T. Benton, II, Chair, Judicial Ethics Advisory Committee, 301  S. MLK Jr. Blvd. Tallahassee, FL 32399.

Participating Members:
Judge Robert T. Benton, II, Judge Lisa Davidson, Judge T. Michael Jones, Judge Michael Raiden, Judge Jose Rodriquez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Judge Dorothy Vaccaro, Patricia Lowry, 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
Inquiring Judge (Name of inquiring judge deleted from this copy)