Opinion 93-84

September 14, 1993

Please Note: While the outcome of this opinion remains unchanged, former section 100.5(d) has been superseded by 22 NYCRR 100.4(E)(1).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:         Without the approval of the Chief Administrator of the Courts, a full-time judge may not serve as an executor of an estate of a non-relative or as a testamentary trustee for former clients.

Rules:          22 NYCRR §100.5(d); Canons 5D and 5F of the Code of Judicial Conduct.

Opinion:

         A recently-elected full-time judge states that while practicing law, the judge was appointed under a client’s will as sole testamentary trustee and by a court as the executor of an estate. The judge states that the accountings of proceedings should be completed by the end of the month. The judge also states that since the judge specialized in family law, the judge probably is named as testamentary trustee under other wills. He asks the Committee to give advice as to how to proceed.

         Section 100.5(d) of the Rules of Judicial Conduct 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, trustee or person of a member of his or her family, or with the approval of the Chief Administrator of the Courts, a person not a member of the family with whom the judge has maintained a longstanding personal relationship of trust and confidence, 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. (22 NYCRR 100.5[d]); see also Code of Judicial Conduct, Canon 5[D]).

         In construing this section, this Committee has previously advised that a full-time judge may not complete unfinished legal services performed for an estate before the judge assumed judicial office, even if no court appearances are necessary and remaining tasks are more ministerial than legal in nature (Opinion 89-38, Vol. III; see Opinion 90-86, Vol. VI), and even if the decedents are residents of another state (Opinion 88-19, Vol. I). Thus, the judge should resign as executor and as testamentary trustee (see Opinion 90-86, Vol. VI.).