May a judicial candidate retain an interest in a real-estate LLC after winning office?

Plain-English summary

An attorney shared equal ownership of a real-estate LLC with two nonlawyers. The LLC owned and managed residential and commercial property, and no tenants were lawyers. The attorney asked whether the interest could continue during a judicial campaign and after taking office.

The Commission said the candidate could retain the interest during the campaign, but should not maintain it if elected and seated as judge under former Canon 4D(3).

In practice

The opinion draws the line at becoming a judge; it does not give a general approval for judges’ outside LLC ownership.

Common questions

Q: Could the candidate retain the LLC interest during the campaign?

A: Yes, according to the Commission.

Q: Could the candidate keep it after becoming a judge?

A: No. The Commission said that would not be appropriate or proper.

Q: What former Code provision did the Commission quote?

A: Canon 4D(3), with exceptions for certain family-held or family-investment businesses.

Background and rules framework

Former Canon 4D(3) restricted judicial roles in business entities, with exceptions for a business closely held by the judge or family, or one primarily investing their financial resources.

Citations and references

West Virginia Code of Judicial Conduct (former): Canon 4D(3)(a)–(b).

See also

• WV JIC Advisory Opinion 2009-03
• WV JIC Advisory Opinion 2008-05

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2008-03, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 * FAX (304) 558-0831

March 24, 2008

Re: JIC Advisory Opinion 2008-03

Dear Mr.

In a letter to the Judicial Investigation Commission you asked for an advisory opinion. You stated that you are a member of a West Virginia limited liability company holding an equal interest with two other members. The other members are not attorneys. The purpose of this LLC is to own and manage residential and commercial real estate. None of your tenants are attorneys. You plan to run for judge in 2008 and want to be certain that retaining your interest in this LLC as a candidate and, if successful, as a judge is acceptable.

To address the inquiry which you have made, the Commission has reviewed Canon 4 of the Code of Judicial Conduct. This Canon states in relevant part:

Canon 4. A judge shall so conduct the judge’s extra-judicial activities as to minimize the risk of conflict with judicial obligations.

D. Financial activities.

(3) A judge shall not serve as an officer, director, manager, general partner, adviser or employee of any business entity except that a judge may, subject to the requirements of this Code, manage and participate in: (a) a business closely held by the judge or members of the judge's family, or (b) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge’s family.

March 24, 2008
Page Two

Based upon the language contained in the relevant section of Canon 4, it is the opinion of the Commission that while you could maintain your interest in the LLC while you are a candidate for judicial office it would not be appropriate or proper for you to maintain that interest if you are successful in the campaign and become a judge.

It is hoped that this opinion fully addresses the question which you have raised. If there is any further question regarding this matter do not hesitate to contact the Commission.

Fred L. Fox, II, Chairperson
Judicial Investigation Commission

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