Opinion 14-03

January 30, 2014

Digest:         A full-time judge may serve as the executor of a parent’s estate, and may give uncompensated legal advice to his/her parent, but may not serve as the attorney for the estate.

Rules:          22 NYCRR 100.0(I); 100.4(E)(1); 100.4(G); Opinions 13-68; 11-55; 08-199; 06-155; 03-129; 96-152 (Vol. XV); 95-134 (Vol. XIII); 93-81 (Vol. XI); 90-22 (Vol. V). 

Opinion:

         The inquiring full-time judge, whose parent is in poor health, has been named executor of the parent’s will. The judge asks whether he/she may serve both as executor and as the attorney for his/her parent’s estate.

         With respect to the first question, Section 100.4(E)(1) of the Rules Governing Judicial Conduct states:

A full-time judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, designated by an instrument executed after January 1, 1974, except for the estate, trust or person of a member of the judge’s family, or, with the approval of the Chief Administrator of the Courts, a person not a member of the judge’s family with whom the judge has maintained a longstanding personal relationship of trust and confidence, and then only if such service will not interfere with the proper performance of judicial duties.

(22 NYCRR 100.4[E][1]). Accordingly, the Committee has previously advised that a full-time judge may act as executor of a will for the estate of a family member and may receive compensation which is reasonable and does not exceed what a person who is not a judge would receive for the same activity (see Opinions 08-199; 96-152 [Vol. XV]; 95-134 [Vol. XIII]; 93-81 [Vol. XI]; 90-22 [Vol. V]; see also 22 NYCRR 100.0[I] [defining “member of the judge’s family”]). The inquiring judge may likewise serve as executor of his/her parent’s will (22 NYCRR 100.0[I]; 100.4[E][1]).

         With respect to the second question, Section 100.4(G) of the Rules Governing Judicial Conduct provides:

A full-time judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to a member of the judge’s family.

(22 NYCRR 100.4[G]). In interpreting this provision, the Committee has advised that a full-time judge “may not serve as [his/her] parent’s attorney during [an] eviction proceeding” (Opinion 13-68); may not prepare wills (see Opinion 03-129); and may not serve as “an additional signatory on his/her sibling’s law office escrow account, in the event that the sibling dies or becomes disabled” (Opinion 06-155). In the Committee’s view, the inquiring full-time judge likewise may not serve as attorney for his/her parent’s estate, as this would constitute the practice of law within the meaning of the Rules and is prohibited for a full-time judge (see 22 NYCRR 100.4[E][1]).

         The Committee notes, however, that although the inquiring judge may not serve as attorney for the estate, he/she may, “without compensation, give informal legal assistance to a family member in a non-lawyer/client context” (Opinion 11-55). Accordingly, the judge may provide informal, uncompensated legal advice to his/her parent (see e.g. Opinions 13-68; 11-55; 03-129).