Opinion 90-116
September 18, 1990
Please Note: While the outcome of this opinion remains unchanged, former section 100.5(d) has been superseded by 22 NYCRR 100.4(E)(1). Full-time judges, in particular, should be careful to review the current rule.
Digest: A judge may serve as the trustee of a trust created by the “surrogate parent” of the judge’s spouse.
Rules: 22 NYCRR 100.5 (d).
Opinion:
A full-time judge inquires whether it is permissible to accept appointment as trustee of a trust created by the “surrogate parent” of the judge’s spouse. According to the facts presented, the judge’s spouse’s parent died when the spouse was a teenager, and the parent’s best friend assumed the role of the deceased parent, and gave advice and financial support for college. The judge and the judge’s spouse have a house near the friend and frequently socialize together. The relationship has continued for more than thirty years.
Section 100.5 (d) of the Rules of the Chief Administrator states:
No judge, except a judge who is permitted to practice law, shall serve as the executor, administrator, trustee, guardian or other fiduciary, designated by an instrument executed after January 1, 1974, except for the estate, trust or person of a member of his or her family, and then, only if such service will not interfere with the proper performance of judicial duties. Members of his or her family include a spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familial relationship.
On two previous occasions (Opinion 88-19, dated March 14, 1988, and Opinion 89-118, dated October 24, 1989), this Committee determined that the relationships described in those opinions did not constitute the “close familial relationship” contemplated by the Rule. However, under the facts stated, the relationship here between the judge and the spouse’s “surrogate parent” constitutes a close familial relationship as contemplated by the rule, permitting the judge to act as trustee of the friend’s trust.