Opinion 20-197

December 10, 2020

Digest:         A principal court attorney who hears and reports cases in foreclosure and matrimonial matters may not serve as executor of a former client’s estate, unless they establish to the Chief Administrative Judge’s satisfaction that they maintained a “longstanding personal relationship of trust and confidence” with the decedent and the Chief Administrative Judge approves the appointment in writing.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(E)(1); 100.4(G); 100.6(A); Opinions 18-180; 13-133; 11-125; 11-117; 90-86.

Opinion:

         A full-time principal court attorney who hears and reports cases in foreclosure and matrimonial matters asks if they may serve as executor of a former client’s estate.

         Court employees with quasi-judicial titles or functions, such as court attorney-referees, must comply with the Rules Governing Judicial Conduct in performing their duties and must otherwise “so far as practical and appropriate” use the Rules to guide their conduct (22 NYCRR 100.6[A]). A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A full-time judge may not serve as an executor designated by an instrument executed after January 1,1974 for a non-family member, except for such a person with whom the judge has 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]; Opinions 18-180; 11-117; 90-86).

         Here, although the inquiring full-time principal court attorney does not have a quasi-judicial title, they hear and report cases in foreclosure and matrimonial matters. This constitutes a quasi-judicial function akin to that of a court attorney-referee, and we therefore conclude that the fiduciary limitations of Section 100.4(E)(1) apply (cf. Opinion 13-133 [principal law clerks who are appointed to serve part-time as SCAR hearing officers during regular court hours as part of their job responsibilities are subject to the same restrictions as sitting judges with respect to political activities]).

         Accordingly, the inquiring court attorney may not serve as executor of a former client’s estate unless they maintained a “longstanding personal relationship of trust and confidence” with their former client and they obtain the Chief Administrative Judge’s written approval. As a practical matter, this means they must affirmatively establish to the Chief Administrative Judge’s satisfaction the requisite “longstanding personal relationship of trust and confidence” under Section 100.4(E)(1). In doing so, we note they may refer to Opinion 11-125 for examples of factors, in the “Close Social Relationship” and “Close Personal Relationship” categories, that may support their request.

         Even if the Chief Administrative Judge approves the appointment, of course, the court attorney’s duties as executor must not interfere with proper performance of their quasi-judicial duties (see 22 NYCRR 100.4[E][1]) and the court attorney must not serve as attorney for the estate (see 22 NYCRR 100.4[G]).

         The court attorney may also wish to contact the Unified Court System’s Office of Court Administration, the agency with the ultimate authority to interpret Part 50 of the Chief Judge’s Rules, for further guidance on any issues that may arise under the Rules Governing Conduct of Nonjudicial Court Employees (Ethics Helpline:

1-888-28-ETHIC).