Opinion 20-27
January 30, 2020
Digest: A full-time judge may serve as an executor under the will of relatives within the sixth degree of relationship, provided that such fiduciary activities do not interfere with performance of his/her judicial duties and do not constitute the practice of law, and need not formally seek permission to do so.
Rules: 22 NYCRR 100.4(E)(1); 100.4(G); Opinions 14-89; 00-76, 95-134; 93-81; 96-152.
Opinion:
A full-time judge asks if he/she may serve as executor under the wills of his/her aunts or uncles.
The Rules Governing Judicial Conduct expressly permit a full-time judge to serve as an executor or other fiduciary, designated by an instrument, “for the estate, trust or person of a member of the judge’s family” (22 NYCRR 100.4[E][1]). Decades ago, drawing directly on the definition of “member of the judge’s family,” we said a judge may serve as executor of the estate of the aunt of the judge’s spouse, or as executor, co-executor, or contingent trustee of the estate of a deceased aunt or uncle, where there existed a “close familial relationship” between the judge and the decedent(s) (see Opinions 00-76; 95-134; 93-81; 96-152). We consider here whether a judge must affirmatively establish a “close familial relationship” with an aunt or uncle by writing to us and/or to the Chief Administrative Judge.
In Opinion 14-89 (footnotes and volume numbers omitted), we said:
In resolving the present inquiry, the Committee also seeks to harmonize and modify its prior opinions as needed to make it easier for judges to understand and apply the term “members of the judge’s family” as it appears in Section 100.4(D)(3)(b) and three other provisions of the Rules Governing Judicial Conduct (i.e. 100.4[D][2], 100.4[E][1], and 100.4[G]). The definition of “member of the judge’s family” is ambiguous as applied to cousins, siblings, and many other relatives who would ordinarily be considered family members in any usual sense.
In Opinion 10-203(B), the Committee construed the definition of the phrase “member of the judge’s family” under Section 100.0(I) broadly, consistent with an intuitive, common-sense understanding of the phrase, to presumptively include the judge’s first cousin (i.e. a relative within the fourth degree) without requiring the judge to establish that he/she has maintained a close familial relationship with him/her. On further consideration, the Committee believes this presumption should be extended not only to all relatives within the fourth degree of relationship, but to all relatives within the sixth degree of relationship as well,… [as] such a relative’s appearance in a proceeding as a party would require the judge’s disqualification. Relatives within the sixth degree of relationship include a great-grandparent, grandparent, parent, sibling, aunt, uncle, niece, nephew, first cousin, second cousin, child, grandchild, or great-grandchild (see 22 NYCRR 100.0[C]).
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[T]he same construction of “member of the judge’s family” must apply to Sections 100.4(D)(2), 100.4(D)(3)(b), 100.4(E)(1), and 100.4(G). Therefore, Opinion 99-114 is modified to the extent it requires a demonstration that a full-time judge actually maintains a “close familial relationship” with a relative within the sixth degree of relationship before the judge may provide such relative with uncompensated legal advice as a “member of the judge’s family [emphasis in original]” (see Opinion 99-114; 22 NYCRR 100.4[G]). Instead, consistent with the present opinion, a full-time judge is presumptively entitled to provide uncompensated legal advice to relatives within the sixth degree of relationship, should he/she wish to do so.
Here, too, we believe “the same construction of ‘member of the judge’s family’ must apply to Section[] … 100.4(E)(1)” (Opinion 14-89). Accordingly, as the judge’s aunts/uncles are third-degree relatives, the judge need not affirmatively establish that he/she “maintains a close family relationship” with them for purposes of Section 100.4(E)(1). Instead, the judge is presumptively entitled to serve as executor under the will of relatives within the sixth degree of relationship, should he/she wish to do so (see Opinion 14-89). Thus, the judge here may serve as executor under the will of an aunt or uncle and need not formally seek permission from us or from the Chief Administrative Judge under Section 100.4(E)(1) (cf. Opinion 95-134), provided that such fiduciary activities do not interfere with performance of his/her judicial duties (see 22 NYCRR 100.4[E][1]) and do not constitute the practice of law (see 22 NYCRR 100.4[G]).