Year 1988 Ethics Opinions
THE ASSOCIATION OF THE BAR
OF THE CITY OF NEW YORK
FORMAL OPINION 1988-2
PROFESSIONAL AND JUDICIAL ETHICS
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March 31, 1988
We have been asked whether a judge
of a New York state court may serve as the executor of the estate
of a decedent without violating the Code of Judicial Conduct or
Section 100.5(d) of the Judicial Conduct Rules of the Chief
Administrator of the Courts (22 N.Y.C.R.R. Part 100) (the "Rules").
The decedent in his will named the
inquirer executor of his estate. The will is a simple one,
without any apparent problems or potential for contest. The
inquirer petitioned for appointment as executor and wishes to
serve. If the inquirer declined appointment, it would delay
winding up the estate and create additional expense. The inquirer
estimates that the value of the estate is less than $300,000.
The inquirer had known the
decedent for most of the inquirer's life. During the last decade
the inquirer had become, psychologically, "family"
after the decedent's wife and siblings had all died. The decedent
had no children. He had a niece and two nephews who, to the
inquirer's knowledge, never came to visit or to spend any time
with the decedent. The decedent had no nearby caring friends. His
housekeeper and the inquirer were his only "anchors." In the late
1970s, while the inquirer was still in private practice and the decedent's
health began to fail, the inquirer
set up an inter vivos trust at the decedent's request which
placed his assets under the control of the inquirer and a bank.
After becoming a judge, the inquirer determined that it was
reasonable to continue as trustee of this trust without violating
the Code of Judicial Conduct or Section 100.5(d) of the Rules.
Both before and after becoming a
judge, the inquirer maintained regular contact with the decedent.
The inquirer and the inquirer's spouse would frequently dine with
him. The decedent sought the company of the inquirer and the
inquirer's family, particularly as the decedent's health began to
fail. The inquirer helped the decedent plan vacation trips, and
the inquirer's daughter, who at the time was 16 years old,
volunteered to go with the decedent to Europe, although this
planned trip was not in fact taken. The inquirer also assisted in
securing the decedent additional household help and care before
his final hospitalization. In addition, the inquirer helped the
decedent with routine matters, such as seeing to it that his
bills were paid.
Section 100.5(d) of the Rules
provides as follows (underscoring supplied; italics in original):
(d) Fiduciary activities. No
judge, except a judge who is permitted to practice law, shall
serve as the executor, administrator, trustee, guardian or other
fiduciary, designated by an instrument executed after January 1,
1974, except for the estate, trust or person of a member of his
or her family, and then, only if such service will not interfere
with the proper performance of judicial duties. Members of his or
her family include a spouse, child, grandchild, parent,
grandparent or other relative or person with whom the judge
maintains a close familial relationship.
(1) A judge shall not serve as a
family fiduciary if it is likely that as a fiduciary he or she
will be engaged in proceedings that would ordinarily come before
him or her, or if the estate, trust or ward becomes involved in
adversary proceedings in the court on which the judge serves or
one under its appellate jurisdiction.
(2) While acting as a fiduciary, a
judge is subject to the same restrictions on financial activities
that apply to the judge in his or her personal capacity.
This Section, in relevant part, is
identical to Canon 5(D) of the Code of Judicial Conduct.
Section 100.5(d) of the Rules and
Canon 5(D) expressly except the estate or trust of a member of
the judge's family from the prohibition against serving as
executor or trustee. "Members of his or her family" is
expressly defined to include a person not necessarily a relative
"with whom the judge maintains a close familial
relationship." There is no requirement that the person
maintain the same household as the judge. * We are not aware of
any judicial or other precedent that has interpreted the quoted
phrase or applied it to a specific set of facts. Cf. N.Y. State
240 (1972) (a judge is not disqualified, under Canon 27 of the
former Canons of Judicial Ethics, from serving as executor or
trustee, provided such position does not interfere with the
proper performance of his judicial duties).
* By contrast, Canon 5(D) of the
Code of Judicial Conduct for United States Judges adopted by the
Judicial Conference of the United States requires, in the case of
a person who is not a relative, that that person must have
resided in the judge's household.
In our opinion, the decedent was a
person with whom the inquirer maintained "a close familial
relationship" over a long period of time and, accordingly,
we believe that the decedent may be considered a member of the
inquirer's family within the meaning of the Canon and the Rules.
It seems apparent that in acting as executor of the decedent's
will, it is not likely that the inquirer will be engaged in
proceedings that would ordinarily come before him as a judge. It
also seems likely that the estate will not become involved in
adversary proceedings in the court on which the inquirer serves
or one under its appellate jurisdiction. For these reasons, we
have concluded that the inquirer may accept appointment as
executor of the decedent's will. Our opinion would be the same
whether or not the inquirer was also named a beneficiary under
Finally, we note that paragraph 2
of Canon 5(D) and Section 100.5(d) of the Rules provides that a
judge, while acting as a fiduciary, is subject to the same
restrictions on financial activities that apply to the judge in
his personal capacity (see Section 100.5(c) of the Rules and
Canon 5(C)). The inquirer must, of course, be satisfied that, as
executor, full compliance will be made with these requirements.