Opinion 23-88
September 7, 2023
Digest: (1)
A full-time judge who is, along with their siblings, a beneficiary of their
parent’s estate may (a) assist the sibling who is serving as executor in
selecting an attorney for the estate; (b) review documents relating to the
estate and the probate proceedings; (c) discuss the estate and the proceedings
with the other sibling beneficiaries; and (d) provide free legal advice to
their siblings, including the executor, regarding the estate and the
proceedings. However, the judge may not represent their siblings or the
estate, nor participate in meetings with estate counsel.
(2) Where the judge, as beneficiary, has a direct personal interest in the
estate proceeding, the judge must disqualify in all matters involving the
attorney for the estate, both during the representation and for a period of two
years from its termination.
Rules: 22 NYCRR 100.0(I); 100.2; 100.2(A); 100.2(C); 100.4(G); Opinions 20-27; 18-120; 18-32; 17-76; 17-67; 14-89.
Opinion:
The inquiring full-time judge and their siblings are beneficiaries of their late parent’s estate. One sibling is serving as executor of the estate.[1] The judge asks if it is ethically permissible to assist their sibling/estate executor in selecting an attorney for the estate; review documents relating to the estate and the probate proceedings; discuss the estate and the proceedings with the other sibling beneficiaries; and provide free legal advice to the judge’s siblings, including the executor, regarding the estate and the proceedings. The judge also asks if they must disqualify from other matters involving the attorney for the estate, and if so, for what period of time.
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]). Thus, a judge may not lend judicial prestige to advance any private interests (see 22 NYCRR 100.2[C]). Also, a full-time judge “shall not practice law [but] may, without compensation, give legal advice to a member of the judge’s family” (22 NYCRR 100.4[G]).[2]
We have advised that, while a full-time judge may “retain or assist in retaining an attorney for adult relatives...and may continue to provide informal legal advice directly to those relatives,” the judge “may not discuss or strategize about the matters directly with retained counsel” as doing so “constitutes the impermissible practice of law and/or creates the appearance” that the judge is “serving as co-counsel” (Opinion 18-120). We have further advised that the judge may not “be present in person, by telephone or otherwise, during the relatives’ meeting” with their retained counsel (see id.).
Therefore, while this judge may not serve as counsel for the estate or their siblings, and must not participate in meetings with estate counsel, the judge may otherwise assist in the selection of the attorney for the estate, review documents concerning the estate and probate proceedings, and provide uncompensated legal advice regarding such matters to their siblings, including the executor sibling.
As for disqualification, the usual rule is that “a judge is disqualified, subject to remittal, when an attorney representing the judge’s first or second-degree relative appears before the judge,” and disclosure is required for a two-year period after the representation concludes (Opinion 18-32). But where the judge has a personal interest in that legal matter, we have said “the judge should proceed with [their] disqualification obligations as if the judge had retained counsel” personally (id.). In such instances, the judge must continue to disqualify for the two-year period after conclusion of the representation (see Opinions 17-76; 17-67).
Here, the inquiring judge is an estate beneficiary and therefore has a personal interest in the probate proceedings, even though it is the judge’s sibling, and not the judge, who is serving as executor. On these facts, we conclude the judge must disqualify from any matters involving the attorney who represents the judge’s parent’s estate, both during the representation and for two years after the representation ends.
[1] The inquiring judge was apparently named as a co-executor, but declined to serve.
[2] “Member of the judge’s family” is defined as “a spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familial relationship” (22 NYCRR 100.0[I]). We have applied “an intuitive, common-sense understanding of the phrase to presumptively include” all relatives within the sixth degree of relationship rather than requiring a judge to “affirmatively establish” that the judge maintains a close familial relationship with siblings, first cousins, and the like (Opinions 20-27; 14-89).