Opinion 11-117

                                                           February 14, 2012

Dear:

         This responds to your inquiry (11-117) in which you ask if you may continue to serve as co-trustee of a testamentary trust. You advise that the trust was established in 1967 under the will of your former law partner’s client, that your law partner and a banking institution were named as the initial co-trustees, and that the Surrogate’s Court appointed you successor co-trustee after your partner’s death and before you assumed the bench as a full-time judge in January 2012.

         Pursuant to the Rules Governing Judicial Conduct, a full-time judge is prohibited from serving as a trustee designated by an instrument executed after January 1,1974 for a non-family member except for such a person with whom you have maintained a longstanding personal relationship of trust and confidence, only if doing so will not interfere with the proper performance of judicial duties and then only with the Chief Administrative Judge’s approval (see 22 NYCRR 100.4[E][1]). Because you have indicated that you had no relationship with the testator who created the trust, the exception to the Rule that prohibits you from serving as a trustee does not apply.

         And, while the trust was created prior to January 1, 1974, it appears that you were not designated a co-trustee prior to that date. Rather, the Surrogate’s Court appointed you a successor co-trustee after your former partner’s death in 2009.

         Therefore, you cannot continue to serve as successor co-trustee of the testamentary trust established in 1967 under the will of your former law partner’s client.

                                                 Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair