FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-28
Date of Issue: September 24, 2019

ISSUE

1. Whether a judge must sell an interest in an out-of-state law firm upon election or appointment to the bench?

ANSWER: Yes. A judge cannot maintain an ownership interest in a law firm regardless of the location of the law firm.

FACTS

A candidate for a judicial seat is a shareholder in a Florida law firm. The Florida law firm owns a law firm in Massachusetts, and refers cases to other firms in the area. The judicial candidate does not practice law in Massachusetts, and the candidate has "a very minimal 0.5% ownership interest" in the Massachusetts law firm.

The judicial candidate asks whether the candidate would need to sell the interest in the out-of-state firm if elected.

 

DISCUSSION

Canon 5(D)(1)(b) states that a judge must not engage in financial and business transactions 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." But we have stated a judge is not prohibited from engaging in business relationships with attorneys. Fla. JEAC Op. 14-27.

There are multiple opinions from this Committee approving limited business relationships between a judge and an attorney. See, e.g., Fla. JEAC Op. 14-27 (the inquiring judge had an ownership interest in a limited liability company that owned the land and building where the inquiring judge's former law firm was located); Fla. JEAC Op. 10-02 (the inquiring judge was the co-owner of real property with the County Attorney); Fla. JEAC Op. 07-10 (the inquiring judge leased a building to a local legal aid group); Fla. JEAC Op. 82-12 (the inquiring judge owned a hotel with a local attorney); Fla. JEAC Op. 81-2 (the inquiring judge owned an interest in a general partnership that owned unimproved land); Fla. JEAC Op. 76-20 (the inquiring judge owned real and personal property in partnership with a lawyer).

But none of these examples involved the judge sharing an ownership interest in a law firm.

Fla. Code Jud. Conduct, Canon 5G states that "[a] judge shall not practice law." We have stated that this prohibition does not preclude a newly elected or appointed judge from receiving compensation for legal work the judge performed before becoming a judge. Fla. JEAC Op. 93-38; see also Fla. JEAC Op. 06-01 ("[T]he Code does not prohibit a Judge from receiving compensation for legal services provided before the date the Judge took the bench . . ."). But a judge "should not be sharing in profits of [a] firm earned after [the judge's] departure from the firm." Fla. JEAC Op. 93-38.

Whether profits are shared with the inquiring judicial candidate is not necessarily dispositive. It is the retention of the ownership interest in a law firm that we determine to be problematic. So too does Massachusetts. See Mass. Advis. Op. 98-14 (citing Massachusetts Supreme Judicial Court Rule 3:06). The partiality of the judge could be questioned, and a third party might conclude the judge is still engaged in the practice of law. A third party might also question whether the judge favors the type of case or party like those represented by the law firm.

If profits are shared, there could be other issues too. In certain cases, the sharing of legal fees may require notice to clients. In other cases, court approval may be required to share fees with a person not involved in the case or even practicing law.

In Fla. JEAC Op. 06-01, we stated that "[b]ecause a judge cannot practice law, it follows that a judge may not own a [P]rofessional [A]ssociation" when the professional association was created to practice law. We have also stated that a judge may not own an interest in a closely held business with another person who is not a member of the judge's family. Fla. JEAC Op. 16-17.

We note that Massachusetts Advisory Opinion 98-14 concluded that a judge could not maintain an ownership interest in a law firm after appointment to the bench. That opinion is particularly relevant to the question presented here because the inquiring judicial candidate's ownership interest is in a Massachusetts law firm. The Massachusetts opinion concluded that a lawyer who becomes a judge in Massachusetts is no longer eligible to practice law and, as a result, is no longer eligible to maintain an interest in a Massachusetts limited liability law firm. The inquiring judge too, if elected, would be unable to continue the practice of law. Assuming the correctness of the Massachusetts opinion's interpretation of its own rules, Massachusetts law may preclude the inquiring judge's ownership interest in the firm regardless of Florida law. We do not try to interpret Massachusetts law but, of course, your status as member of the Florida Bar and as a judge would require you to comply with the law.

The conclusion of the Massachusetts opinion, and ours, also tracks the view of the other states that have considered the issue. See New York Advisory Opinion 97-9; Nebraska Judicial Ethics Advisory Opinion 97-2; Ohio Advisory Opinion 89-17; and Texas Judicial Advisory Opinion No. 129 (1989).

The Canons and these opinions lead us to conclude that a judge cannot maintain an ownership interest in a law firm regardless of the location of the law firm.

 

REFERENCES

Fla. Code Jud. Conduct, Canon 5(D)(1)(b) and Canon 5G.
Fla. JEAC Op. 16-17; Fla. JEAC Op. 14-27; Fla. JEAC Op. 10-02; Fla. JEAC Op. 07-10; Fla. JEAC Op. 06-01; Fla. JEAC Op. 93-38; Fla. JEAC Op. 82-12; Fla. JEAC Op. 81-2; Fla. JEAC Op. 76-20

Other: Massachusetts Advisory Opinion 98-14; New York Advisory Opinion 97-9; Nebraska Ethics Advisory Opinion 97-2; Ohio Advisory Opinion 89-17; Texas Advisory Opinion No. 129 (1989)

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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 of the committee.   See 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. See id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with whether the proposed conduct violates a provision of that Code.

For further information, contact Judge W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.

All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit's website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court's website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring Judge (name deleted)
Chief Justice Charles T. Canady, Justice Liaison
John A. Tomasino, Supreme Court Clerk
All Committee Members
General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel