May a newly elected West Virginia judge keep an office building and rent it to lawyers?

Plain-English summary

A lawyer running for judge planned to sell a solo practice if elected but retain shares in a private corporation jointly owned with a spouse; the corporation owned the office building. The candidate asked whether the building could be leased to the practice's buyer or other lawyers, with tenants agreeing not to appear before the judge.

The Commission applied West Virginia Code of Judicial Conduct Rule 3.11(C), which limits financial activities that interfere with duties, cause frequent disqualification or create continuing business ties with lawyers likely to appear before the court. It cited JIC Opinions 1991-07 and 1991-01, which had identified sale, recusal from renter cases, and avoiding such tenants as possible routes for judges already owning buildings.

The Commission permitted the described continued ownership and tenancy if the judge disqualified from the renters' cases. It relied on the existing ownership, a circuit with more than one judge and a sufficient pool of other lawyers, while saying such financial arrangements require case-by-case assessment.

In practice

The holding covers an existing property in the described multi-judge circuit, with recusal from all matters involving lawyer tenants. The opinion does not make the same finding for every judicial landlord arrangement.

Common questions

Q: Must the candidate sell the office building if elected?

A: No. The Commission allowed retaining it on the stated facts with disqualification from renters' cases.

Q: What alternatives did the earlier opinions identify?

A: Sale, recusal from tenant-lawyer cases, or avoiding rentals to lawyers and others likely to appear regularly before the court.

Background and rules framework

Rule 3.11(C) addresses a judge's financial activities and their effect on duties, disqualification and continuing relationships with likely court participants. The Commission applied that rule and its prior building-tenancy opinions to the candidate's proposed lease.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 3.11(C)(1)-(3), financial activities and judicial duties.

Other opinions cited:

• JIC Advisory Opinions 1991-07 and 1991-01, judges renting owned buildings to lawyers.

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2023-15, redacted

Original opinion text

Reproduced from the official redacted PDF for research purposes. The linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
WV Judicial Tower - Suite 700 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169

June 6, 2023

Re: JIC Advisory Opinion 2023-15

Dear Attorney :

Your request for a formal advisory opinion was recently reviewed by the Judicial Investigation Commission. The facts giving rise to the request are as follows: You are contemplating running for judge in the 2024 election. At present, you are a solo practitioner but plan to bring an associate into your practice. The law office is housed in a building owned by a private corporation jointly belonging to your spouse and you. If you are elected, you plan to sell your practice to your associate or someone else. However, you wish to retain the building and have the new attorney pay the corporation rent. You believe that the practice and the building have the capacity to grow to two or three lawyers. You state that as a judge you would never rent to a Public Defender Officer or a Prosecutor’s Office. You also indicated that any law practice housed in the building would agree, as part of the lease terms, that its attorneys could not appear before you in court. Fortunately, you are located in a county which has a sufficient number of lawyers that would allow for such a provision. Additionally, you are running in a circuit with more than one judge. You want to know, if elected, can your spouse and you maintain ownership of the building and rent it to a lawyer or lawyers accordingly.

To address your question the Commission has reviewed Rule 3.11(C) of the Code of Judicial Conduct which states:

(C) A judge shall not engage in financial activities permitted under paragraphs (A) and (B) if they will:

(1) interfere with the proper performance of judicial duties;

JIC Advisory Opinion 2023-15
June 6, 2023
Page 2 of 2

(2) lead to frequent disqualification of the judge; [or]

(3) Involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; . . . .

In JIC Advisory Opinions 1991-07 and1991-01, the Commission advised judges who already owned buildings with lawyers as tenants that they had three options: (1) they could sell the property in question; (2) disqualify themselves from all cases involving the lawyers and refer them to another judge in the circuit for hearings and matters being handled by the renting attorneys; or (3) not rent to any lawyers or persons likely to come before the Court on a regular basis. While these financial transactions must be viewed on a case by case basis, the Commission is of the opinion that you could avail yourself of any of the options including number two without running afoul of the Code of Judicial Conduct since you already own the building, you are in a multi-judge circuit, there is a sufficient number of lawyers practicing in the circuit, and you would disqualify yourself from presiding over any case involving your renter(s).

The Commission hopes that this opinion fully addresses the issues which you have raised. Please do not hesitate to contact the Commission should you have any questions, comments or concerns.

Sincerely,

Alan D. Moats, Chairperson
Judicial Investigation Commission

ADM/tat