Opinion 17-33

April 11, 2017

Dear :

         This responds to your inquiry (17-33) asking whether you may, as a newly elected full-time judge, complete your service as executor of a former client’s will by signing a deed necessary to transfer title to an heir. Although you had been appointed to this fiduciary position prior to taking the bench, you were unable to previously transfer title because the heir was a minor. In addition, you ask whether you may offer advice to a law school friend who is interested in running for the same judicial position to which you were elected.

         Although a full-time judge may not serve as executor or other fiduciary unless a specific exception applies (see 22 NYCRR 100.4(F), the Committee has advised that a full-time judge who had been serving as a fiduciary before he/she assumed the bench may perform purely ministerial acts as needed to close out his/her service, preferably within one year of assuming the bench. Thus, a full time judge who had served as executor of the estate of a family friend and whose fiduciary services had been completed before taking the bench may perform the ministerial task of signing a claim form related to recently discovered unclaimed funds (see Opinion 99-76). Similarly, here, as in Opinion 99-76, continuing service as executor does not involve the completion of unfinished legal work, which would be prohibited (see 22 NYCRR 100.4[G]). Rather, the remaining duties are limited in scope, involve a purely ministerial task, and will end upon transfer of the deed.

         As to your second inquiry, a judge must always avoid both the appearance and the reality that he/she is lending the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.2[C]) and must not be directly or indirectly involved in impermissible political activity (see 22 NYCRR 100.5[A][1]). Accordingly, offering advice to a potential judicial candidate is permissible provided the mentor judge exercises “particular caution to avoid any perception of involvement in impermissible political activity both before and after the mentee publicly declares his/her candidacy for election to judicial office” (Opinion 16-151). In particular, a mentor judge “must not…review and comment on proposed campaign literature or campaign advertisements, campaign slogans, or other matters of campaign strategy and outreach to voters” (id.). Specific parameters regarding what is permissible as opposed to impermissible political activity in this particular circumstance is more fully set forth in Opinion 16-151.

         Enclosed, for your convenience, are Opinions 16-151, 14-76 and 99-76, which address these issues.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t (Ret.)

                                                 Committee Co-Chair

Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

Committee Co-Chair

Encls.