Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 01-7

May a judge hear a case in which a party is represented by an attorney who subleases from the judge's former partner an office in a building co-owned by the judge, if the judge has leased his entire interest in the building to the former partner and will not hear any cases involving the former partner?

Answer: Yes.

A judge and his former law partner are co-owners of an office building. The former partner has leased from the judge the entire building and has assumed the unconditional, exclusive obligation to pay the mortgage, insurance, taxes, maintenance and other related expenses. The former partner has subleased offices in the building to other attorneys. One of the other attorneys regularly appears in the judge's court. The former partner has the financial ability to pay the rental fee regardless of any sub-tenant attorney's failure to pay rent.

The Canons of Judicial Conduct relevant to this inquiry provide as follows:

Canon 2. "A judge shall avoid…the appearance of impropriety in all of the judge's activities"

Canon 2A. "A judge…shall act at all times in a manner that promotes public confidence in the…impartiality of the judiciary"

The Commentary to Canon 2A states: "The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity and impartiality is impaired."

Canon 3E(1). "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, …"

The Commentary to Canon 3E (1) states, in part: " A judge should disclose information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification."

Canon 4.

D. Financial Activities.

"A judge shall not engage in financial and business dealings that:
….

(b) Involve the judge in frequent transactions or continuing business relationships with those lawyers…likely to come before the court on which the judge serves."

The Commentary to this portion of this Canon provides, in part: " A judge must avoid financial and business dealings that involve the judge in frequent transactions or continuing business relationships with persons likely to come … before the judge…. This rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification."

Canon 4.

D. Financial Activities
…

(2) "A judge may, subject to the requirements of this Canon, hold and manage investments…, including real estate"
…
(4) "A judge shall manage the judge's investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification."

Canon 4D (2) provides that a judge may hold and manage personal investments in real estate. In this inquiry, the judge is not managing his real estate investment in any manner. He is simply holding an ownership interest in his real estate. His prior law partner performs all of the management functions, including sub-leasing and the unconditional obligation to pay all expenses relating to the real estate. The prior partner is financially able to make the payments for all expenses required by the lease, regardless of the ability of any sub-lessee to pay.

Canon 2 requires a judge to avoid the appearance of impropriety and to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The test for the appearance of impropriety is whether hearing the case of a sub-lessee attorney under these circumstances would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity and impartiality is impaired. The committee concludes that, given this set of facts, the question must be answered in the negative. The judge's business relationship is with the former partner, not any of the sub-tenants, and the former partner's ability to pay rent to the judge would not be affected by any default by the sub-tenants.

Canon 4D (1) provides that "[a] judge shall not engage in financial and business dealings that: … (b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves." It would be a violation of the Canon for the judge to hear cases of his former partner/lessee due to their continuing business relationship. Under the facts presented, however, there would be no transactions or any ongoing business between the judge and the sub-lessee attorneys. The Committee, therefore, concludes there would be no violation of this Canon.

Canon 3E (1) requires a judge to disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. In a similar case construing this Canon, the Alabama Judicial Inquiry Commission held that " [a] judge is not disqualified where an attorney appears who subleases his office space from the judge's lessee unless the judge know that his financial interests could be substantially affected by the outcome of the proceeding, or there are additional circumstances causing the judge's impartiality to be reasonably questioned." Alabama Advisory Opinion 99-719 (February 19, 1999). Likewise, the Committee has concluded that, under the facts presented, the judge is not required to disqualify.

The Committee also has considered the issue of whether, even though the judge is not disqualified, he or she nevertheless should disclose to the parties that the attorney is a sub-lessee in a building in which the judge has an ownership interest. The Commentary to Canon 3E(1) states that "…[a] judge should disclose information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification even if the judge believes there is no basis for disqualification." Similarly, the Committee has concluded here that the relevant facts should be disclosed by the judge to counsel and all parties. As stated in a prior opinion of this Committee, "[T]his disclosure should assuage any doubt in most cases regarding the judge's ability to be impartial. A party or counsel learning of the…[judge's ownership interest] directly from the judge is far less likely to question the judge's impartiality than one who learns about it later from another source." Virginia Advisory Opinion 01-03 (March 28, 2001).

The Committee then considered Canon 4D (4), which requires divestment of financial interests that might require frequent disqualification. For the reasons previously stated, the Committee has concluded under the factual situation presented that disqualification is not required. Therefore, no divestment issue is presented.

In conclusion, while the Committee acknowledges that there are opinions from other States holding that a judge may not have a landlord-tenant relationship with attorneys practicing in the judge's court, the Committee believes that the factual situation at hand is significantly different in that the judge's business relationship is with a former partner whose cases the judge will not hear and any default by the subleasing attorneys will have no adverse effect on the former partner's ability to satisfy his financial obligations to the judge under the lease.

Canons of Judicial Conduct, Canons 2, 2A, 3E(1), 4D(1)(b), 4D(2), 4D(4).

Alabama Advisory Opinion 99-719 (February 19, 1999).

Virginia Advisory Opinion 01-03 (March 28, 2001).