FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-25
Date of Issue: December 10, 2020

ISSUE

MAY A JUDGE CONTINUE TO LIST THE JUDGE’S FORMER LAW OFFICE PROPERTY, TITLE TO WHICH IS IN A LIMITED LIABILITY COMPANY WHOSE NAME INCLUDES THAT OF THE JUDGE, WITHOUT DISSOLVING OR RENAMING THE COMPANY?

ANSWER: YES, because the business entity is not a “Professional Corporation” organized under Chapter 621, Florida Statutes, and therefore does not place the judge in the position of violating Canon 5G.

FACTS

This inquiry comes from an individual who was recently elected to a judicial position and who will assume office in January. The Judge-Elect was previously in private practice, operating a Limited Liability Company (hereafter “LLC”) whose name includes that of the Judge-Elect. The Judge-Elect is sole owner of the LLC which, in turn, owns the firm’s office building subject to a mortgage. The Judge-Elect also signed the loan instruments as a personal guarantor.

The building is currently listed for sale but, of course, it cannot be known when a buyer might emerge - and so it is possible that the Judge-Elect will have been installed prior to any sale date. The inquiry asks whether there is any ethical impediment to leaving the title of the property under its current name, or whether the LLC should be dissolved and/or renamed excluding the identity of the Judge-Elect.

 

DISCUSSION

Under current Florida law judges at all levels of our court system must be licensed attorneys, and common sense tells us that many of those individuals come to the bench from private practice, whether as solo practitioners or members of large firms. While a number of our prior opinions discuss the steps that new judges must undertake to disengage themselves from such prior business associations, none directly addresses the issue of nomenclature posed by the current inquiry.

In Fla. JEAC Op. 2006-01 a recently appointed judge, who had not yet taken office, was advised to disestablish a Professional Corporation (hereafter “PC”) that was titleholder to the building where the judge formerly practiced law. The Committee concluded that the judge could continue to own the property but not through a PC. While this might suggest that the inquiring Judge-Elect should do the same, it is important to point out that Professional Corporations are governed by a specific statute, §621.03 et seq. The term is defined in §621.03(2) as one “organized . . . for the sole and specific purpose of rendering professional service and which has as its shareholders only other professional corporations, professional limited liability companies, or individuals who themselves are duly licensed or otherwise legally authorized to render the same professional service as the corporation” (emphasis added). Since judges are not permitted to practice law under Canon 5G of the Code of Judicial Conduct, the Committee reasoned that maintaining the PC was no longer appropriate and that the judge should promptly see to it that the PC’s certificate of incorporation was amended to provide for some other lawful purpose. And see §621.13(3).

That opinion did not deal with LLC’s which, though also creatures of statute, are governed by Chapter 605. This chapter is quite detailed, but it contains no restrictive provisions comparable to §621.03(2) that would limit what sort of business the LLC may conduct. Our principal opinion involving an LLC, Fla. JEAC Op. 2014-27, though citing to Op. 2006-01, was primarily concerned with the judge’s continuing participation in a subsequent LLC formed by the judge and some former law partners to take title to the building occupied by the firm. While such participation is not per se forbidden by the Code, we cautioned that the judge should at very least recuse from any subsequent cases involving those attorneys and their clients, or even end the relationship if such disqualifications would be unduly frequent. In the present inquiry the building is for sale and thus the Judge-Elect does not contemplate future ownership, with or without associating with any attorneys.

If, as we conclude, that Op. 2006-01 is limited to judges’ continuing to “practice law” by the very nature of the corporation they may own, and that Op. 2014-27 is primarily intended to discourage unnecessary and burdensome disqualifications, then the actual name of any such corporation is irrelevant.1 Neither we nor the Judge-Elect can predict who any prospective buyers of the building may be. Should another lawyer or law firm be interested in it, the identity of the “real” owner is highly unlikely to be a secret regardless what the LCC calls itself. Should the buyer(s) be a law firm, the Judge Elect can refer to the guidelines in Op. 2014-27 regarding disclosure and possible disqualification.

 

REFERENCES

Florida Statutes Chapter 605 and §§621.03 and 621.13

Florida Code of Judicial Conduct, Canon 5G

Florida JEAC Opinions 2006-01 and 2014-27

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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 Mark Herron, Esq., Judicial Ethics Advisory Committee Chair, Messer Caparello, P.A., Post Office Box 1701, Tallahassee, FL 32302 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 JQC.
Melissa Hamilton, Staff Counsel

 

 

1. In fact, since the LLC is also a mortgagor, we might speculate that a dissolution or even a name change might interfere with that relationship.