Opinion: 98-109
October 22, 1998
Digest:    A part-time judge may serve as a testamentary trustee.

Rule:    22 NYCRR 100.4(E)(1); 100.6(B)(1).


            Since 1969, a part-time town justice has served as a testamentary co-trustee under the will of the judge's mother, along with the judge's brother. The judge's child, a part-time village justice, is interested in being substituted as co-trustee for the judge's brother.

            Both judges inquire whether it is ethical for the parent-judge to continue as co-trustee and whether the child-judge can be substituted as a co-trustee.

            Section 100.4(E)(1) of the Rules Governing Judicial Conduct prohibits a full-time judge from serving as a fiduciary (with certain exceptions, including the estate of a family member). However, section 100.6(B)(1) of the Rules specifically exempts part-time judges from the requirements of section 100.4(E)(1). Both inquirers are part-time judges. Thus, the restrictions that might be applicable to full-time judges in this regard are not applicable to part-time judges and therefore the inquirers may serve as co-trustees.