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Opinion 3

Summary: A judge may not serve in a fiduciary capacity, on behalf of a non-family member, although named in a will executed before, but where the testator dies after, the date the Code of Judicial Conduct becomes effective as to that judge.
Issued: December 03, 1975


The Judicial Qualifications Commission has been requested to give its opinion as to whether the provisions of Rule 3.8(A) which prohibit a judge from serving in a fiduciary capacity except with respect to the estate, trust or person of a member of his family, would prohibit a judge from serving in a case where he was named in a will executed before, but where the testator died after, the effective date of the code.

Our opinion is that the code would prohibit a judge serving as fiduciary in these circumstances.

Rule 3.8(A) specifically states:

Judges should not serve as fiduciaries, except for the estates, trusts, or persons of members of their families, and then only if such service will not 38 interfere with the proper performance of their judicial duties. As family fiduciaries, judges are subject to the following restrictions.

The present question, of course, does not involve fiduciary service with respect to a member of the judge’s family.

A provision relating to the effective date of the code provides:

A person to whom this Code becomes applicable should arrange his affairs as soon as reasonably possible to comply with it. If, however, the demands on his time and the possibility of conflicts of interest are not substantial, a person who holds judicial office on the date this Code becomes effective may continue to act as an executor, administrator, trustee, or other fiduciary for the estate or person of one who is not a member of his family. [Italics ours.]

A will is not effective until the death of the maker and it would follow that a judge would not be considered as having been appointed and having assumed the office as executor under a will merely by virtue of the fact that he was named as such therein.

Since the Code of Judicial Conduct specifically prohibits a judge from serving in such a fiduciary capacity and since the only exception is to the effect that he may “continue” to serve, it follows that a judge could not under the canons serve where at the time of the effective date of the canons he was not then actually serving in a fiduciary capacity but was only named as such in a will of a person who was still in life.

[Pertinent Code of Judicial Conduct provisions: Rules 2.2 and 3.8(A). Cross reference to other relevant opinions for review: #10, #51, #80, #95.]

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