June 18, 1999
Note: Opinion 99-114 "is modified to the extent it requires a demonstration that a full-time judge actually maintains a 'close familial relationship' with a relative within the sixth degree of relationship before the judge may provide such relative with uncompensated legal advice as a 'member of the judge's family.' Instead, … a full-time judge is presumptively entitled to provide uncompensated legal advice to relatives within the sixth degree of relationship, should he/she wish to do so" (Opinion 14-89 [citations omitted]).
Digest: (1) A full-time judge may act as an attorney-in-fact for a family member in connection with an application for a reverse mortgage, where there is no attorney-client relationship. (2) A judge may act pro se in connection with the sale of the judge's partial ownership of real property.
Rule: 22 NYCRR 100.0(I); 100.4(E)(1); 100.4(G); Opinion 92-118 (Vol. X).
A full-time judge makes two inquiries. First, the judge inquires whether it is appropriate to act as attorney-in fact pursuant to a power-of-attorney given by the judge's aunt, in connection with the aunt's application for a reverse mortgage. The judge also inquires whether the judge may "accomplish the closing without an Attorney" for the judge's aunt, in order to save "much-needed money."
Section 100.4(E)(1) of the Rules Governing Judicial Conduct states that "A full-time judge shall not serve as executor, administrator, or other personal representative, trustee, guardian, attorney in fact or other fiduciary . . . except for the estate, trust, or person of a member of the judge's family . . . ." Section 100.0(I) of the Rules defines "member of the judge's family" as a "relative or person with whom the judge maintains a close familial relationship."
Section 100.4(G) of the Rules states that "A full-time judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to a member of the judge's family."
In light of the foregoing, and the details contained in the judge's inquiry, the Committee believes that the relationship between the judge and the aunt are such as to render the aunt a member of the judge's family within the meaning of section 100.0(I) of the Rules. Thus, under section 100.4(G), the judge may give legal advice to his/her aunt, and, pursuant to section 100.4(E)(1), the judge may serve as an attorney-in-fact.
The Committee views the present case as distinguishable from that presented in Opinion 92-118 (Vol. X), in which the Committee advised that a judge should not appear as an attorney-at-law on behalf of the judge's daughter at a closing for the daughter's purchase of a coop apartment. In the present matter, there is to be no attorney-client relationship. Instead, the judge proposes to act essentially as the agent for the elderly aunt. It appears from the terms of the inquiry that there is no closer family member or any other person better positioned to do so.
The second inquiry relates to the judge's sale of a summer house of which the judge is part-owner, together with the judge's brother and sister. The judge asks whether it is permissible to act pro se in preparing a sales contract and attending the closing. The judge's brother and sister would be "going along."
As indicated above, section 100.4(G) of the Rules Governing Judicial Conduct would allow the judge to act pro se in connection with this transaction. The Committee notes that the judge's brother and sister may likewise proceed pro se, and that the judge does not assert that there will be an attorney-client relationship with the co-owner siblings.