FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2021-08
Date of Issue: July 19, 2021

ISSUE

May a judge be named as a trustee of a friend’s trust, if the judge would not be required to serve until a later date?

ANSWER: Yes, but the judge should make the friend aware that the judge would be ineligible to serve as trustee if he or she remains a member of the judiciary at the time the appointment takes effect.

FACTS

A judge was contacted by a close friend who wishes to name the judge as trustee of a trust the friend intends to create for himself and his wife. The judge wishes to know whether the judge may allow himself or herself to be named as trustee of the trust. The actual appointment of the judge to serve in such capacity would not occur until the death of both the friend and the friend’s spouse.

 

DISCUSSION

A sitting judge is prohibited from serving as a trustee or in any other fiduciary capacity, except for the judge’s own family members. Canon 5E(1) of the Florida Code of Judicial Conduct states:

A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge’s family, and then only if such service will not interfere with the proper performance of judicial duties.

Accordingly, had the judge been asked to serve immediately as a trustee, the judge would clearly have to decline. The inquiring judge, however, seeks an opinion as to whether merely being named as trustee under a trust for which the judge would not serve as trustee until a later time, if ever, is prohibited by the Code of Judicial Conduct.

The Code of Judicial Conduct specifically limits its application to judges of the various courts of Florida, and to those acting in a judicial capacity. See “Application” section of the Code of Judicial Conduct. Canon 3C(2) of the Code further directs a judge to require those under the judge’s direction and control to abide by the standards of fidelity and diligence that apply to judges. The person who intends to name the judge as trustee, however, is not a member of the judiciary, nor is the person one who is under the direction and control of a judge. Thus, the settlor of the proposed trust is not subject in any way to the provisions of the Code.

Canon 5E(1) prohibits a judge only from serving as a trustee or other fiduciary for non-family members. Nothing in the Canon prohibits a judge from being named to serve in such capacity at some time in the future, with the understanding that the judge could serve as trustee only if the judge is no longer serving in a judicial capacity when the appointment takes effect. In this instance, the inquiring judge would not be called upon to act as trustee until after the death of both the friend and the friend’s spouse. By that time, the judge may no longer be in office or be otherwise bound by the Code of Judicial Conduct and would be free to serve as trustee. Under the circumstances presented in this inquiry, nothing in the Code prohibits the judge from being named as trustee of the trust.

Despite there being no prohibition against the judge being named as trustee, the Committee recommends that the judge advise the friend of the prohibition contained in Section 5E(1) of the Code and should encourage the friend to either name a different trustee or provide for an alternate trustee should the  judge be unable to serve.

 

REFERENCES

Fla. Code of Judicial Conduct, Canons 3C(2), 5E(1)

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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 futher information, contact Judge Nina Ashenafi-Richardson, Chair of the Judicial Ethics Advisory Committee, 301 S. Monroe Street, Room 265-B, Tallahassee, FL 32301 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 of the Inquiring Judge deleted)
Chief Justice Charles T. Canady, Justice Liaison
John A Tomasino, Supreme Court Clerk
All Committee Members
Alexander J. Williams, General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel