Opinion 17-82

May 4, 2017

Digest:         A full-time judge, in his/her capacity as administrator of a first-degree relative’s estate, may act pro se at the closing for the estate’s solely owned real property, where he/she will transfer an administrator’s deed conferring ownership from the estate to the buyer, deposit the buyer’s down payment into a title company’s escrow account, compute and adjust routine home expenses such as taxes and utilities, and exchange checks payable by or to the estate.

Rules:          22 NYCRR 100.0(I); 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(E)(1); 100.4(G); Opinions 14-89; 14-03; 99-114; 92-118.

Opinion: 

         A full-time judge’s parent died intestate, leaving the judge and his/her siblings as the sole beneficiaries of “a simple estate” which includes one piece of real property. The Surrogate’s Court has appointed the judge as administrator. The judge has identified a buyer who wishes to purchase the estate’s real property, and asks if he/she may act pro se as administrator at the closing. Because the estate is the sole owner of the real property, the closing “will involve the transfer of an ‘Administrator’s Deed’ conferring ownership directly from the [e]state to the [b]uyer.” The judge plans to have the buyer’s down payment “deposited into an escrow account maintained by the title company.” At the closing, the judge anticipates performing “mathematical computations adjusting routine home expenses such as real property taxes, [various utilities], and the exchange of checks payable by, or to, the [e]state.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may generally engage in extra-judicial activities so long as those activities do not; (1) cast reasonable doubt on the judge’s ability to act impartially; (2) detract from the dignity of judicial office; and, (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4 [A][1]-[3]). A full-time judge may not serve as an administrator or other fiduciary “designated by an instrument executed after January 1, 1974,” unless an exception applies (22 NYCRR 100.4[E][1]).¹ A full-time judge also may not practice law, although he/she “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 the Committee’s view, the Rules Governing Judicial Conduct do not prohibit a full-time judge from serving as administrator of his/her parent’s estate by court order (cf. 22 NYCRR 100.4[E][1]). Further, although a full-time judge may not serve as the attorney for his/her parent’s estate (see Opinion 14-03) or represent a family member at a real estate closing (see Opinion 92-118), a judge may “act pro se in preparing a sales contract and attending the closing” for a summer house of which the judge is part owner (Opinion 99-114). Here, as the estate is the sole owner of the real property, the judge may participate in the closing pro se in his/her capacity as the estate’s administrator (cf. 22 NYCRR 100.4[G]; Opinion 99-114).² 

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         ¹ For example, a judge may serve as an administrator “designated by an instrument” for the estate of “a member of the judge’s family” (22 NYCRR 100.4[E][1]). The term “member of the judge’s family” expressly includes a “parent” (22 NYCRR 100.0[I]), and the Committee has interpreted the term to include, presumptively, relatives within the sixth degree of relationship (see Opinion 14-89).

           ² Although not directly relevant here, since this judge and his/her siblings do not own the real property in question, the Committee notes a full-time judge and his/her siblings may all act pro se in selling their jointly owned real property, provided there is no attorney-client relationship between the judge and his/her siblings (see Opinion 99-114).