Opinion 82-12

August 26, 1982

Dear :

This is in response to your inquiry of April 27th, 1982. Prior to going on the Bench you co authored some law books with an attorney. In addition, you and the attorney, with some other shareholders, own and operate a motel. The attorney has recently joined a law firm as one of the senior partners. The law firm handles approximately 10 to 20 industrial claims each year. The attorney, however, would not be involved in the handling of those claims. Your questions are as follows:

1. Must you recuse yourself when members of that firm appear before you.

2. Must you recuse yourself when your business partner appears before you.

3. Must you divest yourself of the above investments.

The Committee was divide 5 to 4. The majority answered these questions as follows:

1. No.

2. Yes.

3. No.

The minority answered as follows:

1. Yes

2. and 3. Yes, or he must divest himself of the investment.

The minority reasoned as follows:

In Opinion 76-20, a judge's retention of ownership of real and personal property in partnership with a lawyer was held not improper but a factor which might require recusal under Canon 5C if the lawyer/partner comes before the judge. There was no issue in that inquiry as to the other members of the law firm appearing before the judge, but the same rule should apply, since a partner has a direct financial interest in the success achieved by other members of the firm in which he has a partnership interest.

The Committee's opinion in 81-2 involved a judge's ownership of an interest in a general partnership that owned unimproved land. This ownership was found not to be improper but a caveat was added that the judge should disqualify himself form legal matters that might come before him involving his partners. The opinion further states that, as soon as possible, the judge should divest himself of investments or other financial interests that might require frequent disqualifications.

The nature of the relationship between the judge and his business partner, particularly the operation through a closely held corporation of a motel, as well as the continuing joint interest in publishing contracts for law books resulting in shared royalties and, presumably, revisions for the updating of books, presents a considerable business relationship beyond that of a judge merely receiving termination payments from his former law firm, which was the subject of Opinion 74-4 and 78-16.

Regardless of the good intentions and actual integrity of the partners, litigants and their counsel will undoubtedly feel at a great disadvantage appearing before the judge in any case involving his business partner's law firm. Since that firm will handle approximately 20 cases before the judge in a year, Canon 5C seems applicable, in that it refers to financial dealings that tend to "involve him (judge) in frequent transactions with lawyer or persons likely to come before the court he serves." The Canon also refers to financial and business dealings "that tent to reflect adversely on him (sic) impartiality." Both of those provisions would seen applicable here and require recusal or divestment of the interest involved.

The majority reasoned as follows:

It is important to remember the judge derives no benefit from the law firm. His interests are not tied to their interests. He and a particular member of that firm enjoy some income from the motel and the books. It is equally important to remember the law firm derives no benefit from the motel or the books.

It is also important to understand the meaning of "frequent transactions" as contained in Canon 5C(1). Owning a piece of a property with a lawyer is not a "frequent transaction", in the same sense as continual speculation in real estate investments. The purpose of Canon 5C(1) is to prevent the appearance to litigants, lawyers, and the public that patronizing the business in which the judge is involved will work to their advantage, or that failure to patronize the business will work to their disadvantage. These prohibitions, however, do not prohibit an infrequent transaction or continuing business relationship, nor enjoying the fruits of past investment or labor with a lawyer.

In this case, the judge's ruling can in no way affect the percentage of occupancy in the motel or whether people buy the book. Likewise, the success of the book or motel does not affect the law firm. There is no way the judge's ruling on behalf of the firm can affect the law book or the motel.

Yours truly,

James T. Carlisle, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members
Sid White, Clerk of the Supreme Court
Mr. Mark Hulsey, Chairman, Florida Judicial Qualifications Commission
Linda H. Yates, Managing Editor, Florida Bar Journal
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the U.S.
All references to the inquiring judge deleted