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Opinion 80

Rule 3.8(A) provides that “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,” and the Commission has been asked:

1. whether the term “other fiduciaries” includes a power of attorney under which the judge could act only if the grantor should be declared mentally incompetent, and

2. whether a long friendship with the grantor would make a justifiable difference for exception.

A power of attorney for an incompetent can be, and frequently is, of indefinite duration and substantially equivalent to guardianship of the property of the incompetent. For this reason, it would clearly be included within the term “other fiduciaries” and, therefore, prohibited.

As to the second question, the exception stated in Rule 3.8 is restricted to members of the family or others with whom the judge maintains a familial relationship, and mere friendship, no matter how long standing, does not meet the standard.

[Pertinent Code of Judicial Conduct provisions: Rules 2.2, 3.8(A). Cross reference to other relevant opinions for review: #3, #10, #51, #95.]

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