Opinion 95-39

March 9, 1995

Please Note: While the outcome of this opinion remains unchanged, former section 100.5(d) has been superseded by 22 NYCRR 100.4(E)(1).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 recently elected full-time judge who had been appointed as conservator for an incompetent, as a matter of necessity may continue to perform services until a successor or interim conservator is appointed, but must move promptly for the appointment of a substitute.


Rule:            22 NYCRR 100.5(d); Canon 5D Code of Judicial Conduct



         A full-time judge who took office on January 1st asks if he/she can continue to serve as conservator for the estate of an incompetent person.

         Some 8-1/2 years ago the judge was appointed in that capacity and has instructed his/her attorneys to seek an order of the appointing court authorizing and directing the judge to file a final accounting. Since the judge does not expect such final accounting to be ready for filing for several months the judge wants to know if he/she may continue to serve as such conservator, performing ministerial acts, receiving income, reinvesting funds, paying bills and continuing the services of a certified social worker that had been retained.

         The Rules of the Chief Administrator, 22 NYCRR 100.5(d), provide in pertinent part as follows:


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 ***.

         Under the circumstances presented, there appear to be essential, on-going services that are required for a period of time and, therefore, the Committee is of the view that, as a matter of necessity, the judge may continue to serve as conservator until a successor or interim conservator is appointed. However the judge must move promptly for a substitution.