March 14, 1988
Please Note: The rules were changed in 1996. Section 100.4(E)(1) now provides:
(1) A full-time judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, designated by an instrument executed after January 1, 1974, except for the estate, trust or person of a member of the judge's family, or, with the approval of the Chief Administrator of the Courts, a person not a member of the judge's family with whom the judge has maintained a longstanding personal relationship of trust and confidence, and then only if such services will not interfere with the proper performance of judicial duties.
Topic: Judge serving as an executor and trustee under wills for close friends, including some residents of another state.
Digest: A judge may not serve as an executor of a will or as a trustee for friends, even if residents of another state.
Rules: Section 100.5(d) of the Rules of the Chief Administrator (22 NYCRR 100.5(d)).
A full-time judge inquires whether it would be proper to serve as an executor and trustee in two situations under wills prepared by very close friends. In one situation, the judge ten years ago, while practicing law, drafted wills for a friend and his spouse, the friend also now being a judge, and both families having remained close friends. In the second situation the friends and all their assets are domiciled in another state.
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...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.
The Committee concludes that section 100.5(d) does not permit judges to serve as executors or trustees for friends, even where the friends are residents of another state, as the friends do not have the familial relationship with the judge contemplated by the rule.
We are aware that the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York has rendered a different opinion on a similar question (Op. No. 1988-2, NYLJ, p.1, col. 6, April 8, 1988), but in our view, the facts in that case are sui generis, and quite clearly distinguishable from the present inquiry.
This Opinion is advisory only and is not binding upon either the Office of Court Administration or the Commission on Judicial Conduct.