June 18, 1993
(Canon 5C (1) - Financial Activities - Compensation from former law firm
Re: Committee on Standard of conduct Governing Judges. Your inquiry dated April 23, 1993
You have asked about the ethical propriety of a recently elected judge continuing to receive compensation from his of her former law firm pursuant to an agreement entered into prior to the election to judicial office.
You state "the agreement provides a formula for division of fees for cases which began between January 1, 1991 and June 15, 1992 (when the now judge became of counsel to the firm). The formula provides that fees generated by any of the cases which were not closed prior to the judge's assumption of office will be divided 75% to the firm and 25% to the judge. The formula was derived in an effort to avoid a case by case analysis of the division of labor in handling each matter as well as allowing for the intangible of goodwill associated with the now judge's reputation in his community.
All eight of the participating committee member agree that you may continue to receive compensation for legal work you performed prior to your ascension to the bench provided the compensation of fees are for work previously performed (see prior Committee Opinion 86-7). You are entitled to collect the fair value of your interest in fees to be collected in the future for work done before your departure from the firm. You should not be sharing in profits of the firm earned after your departure from the firm.
Five committee members find your reference to the "intangible of goodwill associated with the now judge's reputation in his community" to be unclear. They believe that you certainly should not profit from your judicial standing in the community.
One member construes this ambiguous reference about "goodwill" to be part of dissolution of a partnership arrangement as opposed to a compensation agreement triggered by your election to the bench. He does not find the continuation of the dissolution arrangement to violate the Code of Judicial conduct.
Another member states that "past good will is something that would be factored into a departure agreement between parties or associates and has nothing to do with a division of fees." He also states that he does not generally perceive a problem with the sharing of profits in contingency fee cases. However, he questions whether you should be receiving fees in hourly fee cases that continue to generate fees into the future.
The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So2d 5 (Fla.1976).
With regards, I remain,
Yours very truly,
Harvey Goldstein, Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Office of State Court Administrator (name of Judge deleted from this copy)
Participating members: Judges Doughtie ,Green, Farina, Goldstein, Kahn, Patterson, Rushing and Tolton.