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Opinion

Opinion CJE Opinion No. 93-3

Date: 12/31/1993
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.

Owning Office Building with Attorneys as Tenants

You have requested the advice of this Committee regarding the propriety of your ownership of an office building wherein some of the tenants are attorneys who regularly appear before you in a District Court.

As you reported in your letter you are the owner of an office/retail building in the town where the District Court to which you were appointed sits. Your sole ownership of the property was acquired before your appointment. Of the nine offices in the building, six are rented to attorneys. You have taken preliminary steps to transfer the property into an irrevocable trust of which you are the sole beneficiary. Your former law partner is the proposed trustee. He will not appear before you in any court proceeding. From the trust instrument which you enclosed, it is apparent that as sole beneficiary you retain substantial control of trust property by virtue of your exclusive right to determine the trustee.

Canon 3(C)(1)(c) of the Code of Judicial Conduct provides:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned including but not limited to instances where:

(c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial ... interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings;....

In CJE Opinion No. 91-1, we stated, "It is not unreasonable to expect legitimate questions may arise regarding a judge's impartiality in rendering decisions favorable or unfavorable to an entity from which he is receiving financial benefits, albeit indirectly through trust income distribution." While in that matter the judge was receiving rental payments from a litigant rather than attorneys appearing before the judge, the principles set forth in the earlier opinion are nonetheless applicable.

Moreover, Canon 2 provides:

"A judge should avoid impropriety and the appearance of impropriety in all his activities."

Canons 3(C)(1)(c) and 2 suggest that the beneficial financial relationship that exists between you and the attorney tenants raises a question as to your impartiality. It would be reasonable to doubt the impartiality of a judge who receives income from an attorney who is representing a party in a contested matter before the judge.

 For these reasons you should recuse yourself from all contested matters in which one of your tenants represents a party and from any ex parte matter. Recusal is necessary since the conflict presented here cannot be remedied either by disclosure or by agreement of the parties that you can decide the case. This is especially so in light of the Canon 2 stricture set forth above.

 You should be mindful that if a substantial number of situations arise wherein recusal is required as a result of your trust income from attorney/tenants, then the provisions of Canon 5(C)(1) require that you seek reassignment in a court where your work would not be substantially interrupted by the need for recusal. If reassignment is not consistent with the obligations of your office then you should not renew the leases of the attorney/tenants in question.

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