Could a Maryland judge manage a spouse's cousin's affairs under a power of attorney?

Plain-English summary

A judge's spouse's elderly cousin asked the judge to handle income, investments, expenses and care under a general power of attorney. The judge asked whether that family assistance was proper.

A majority of the Committee said acting as attorney in fact on the described facts was not the practice of law barred by Canon XXX, provided the work did not interfere or appear to interfere with judicial duties under Canon XXIII. It said the then-cited trustee statute prevented the judge from holding legal title to the assets.

The Committee also pointed to Canon XXVI as a possible basis for disqualification if investments held for the cousin, or made on her behalf, came before the judge. It expressly limited its conclusion to the facts submitted.

Currency note

This opinion discusses the Maryland judicial ethics provisions in force at the time it was written. Its analysis is historical; verify the current Maryland Code of Judicial Conduct and the linked opinion before relying on a cited provision.

Common questions

Q: Did the Committee view the described power-of-attorney work as practicing law?

A: A majority said it did not amount to the practice of law prohibited by Canon XXX on these facts.

Q: Could the judge hold legal title to the cousin's assets?

A: The opinion said the then-cited statute prohibiting judges from serving as trustees precluded that arrangement.

Q: What if a managed investment came before the judge?

A: The Committee said Canon XXVI might require disqualification in that situation.

Background and rules framework

The opinion discusses Maryland's then-cited Canons XXX, XXIII and XXVI and former Code Article 16, section 199A. It mentions ABA Canon 5D but expressly states that the ABA Code had not been formally adopted in Maryland.

Citations and references

• Maryland Canons of Judicial Ethics, Canons XXX, XXIII and XXVI.
• Maryland Code Article 16, section 199A; official editorial footnote identifies Estates and Trusts Article section 14-104 as of July 10, 2006.
• ABA Code of Judicial Conduct, Canon 5D (not formally adopted in Maryland, per the opinion).

See also

• MD Judicial Ethics Op. 1976-13
• MD Judicial Ethics Op. 1979-03

Source

• Landing page: Maryland Judicial Ethics Committee opinion index
• Original PDF: Opinion 1976-01

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Maryland Judicial Ethics Committee

Opinion Request Number: 1976-01

Date of Issue: February 6, 1976

O Published Opinion G Unpublished Opinion G Unpublished Letter of Advice

Judge May Manage Affairs of Spouse’s Cousin under Power of Attorney but Not Hold Legal Title to Assets

This letter is in response to your inquiry of January 8. You state that in 1972, Dr. and Mrs.
X moved to [Maryland] from Florida, in order to be nearer to you and [your spouse], because of the fact that Mrs. X is [your spouse’s] second cousin.
When Dr. X died recently, it was necessary to place Mrs. X in a nursing home in , since Mrs. X, who is 84, is too feeble and infirm to live alone. Mrs. X, who is a person of substantial means, has reached a point where she can no longer manage her affairs and has insisted that you act as her attorney in fact under a general power of attorney, since you are the only male member of her family in whom she has implicit confidence. You state that your duties would consist of collecting and investing her income; paying her expenses, and seeing that she is properly cared for. You ask whether it is proper for you to do this.
It is the opinion of a majority of this Committee that your acting as Mrs. X’s attorney in fact is not the practice of law forbidden by Canon XXX of the Maryland Canons of Judicial Ethics provided that your performance of the duties imposed upon you do not interfere or appear to interfere with your official duties (Canon XXIII). You may want to remember that Code, Art. 16, § 199A* which prohibits a judge from serving as a trustee, will preclude your holding legal title to the assets committed to your care, and that Canon 5D of the American Bar Association’s Code of Judicial Conduct, which has not been formally adopted in Maryland, prohibits a judge from serving as executor, administrator, trustee, guardian or other fiduciary except for a member of his family, related to him by blood or a “person with whom the judge maintains a close familial relationship.” We invite your attention, moreover, to that portion of Canon XXVI which might well require your disqualification in instances where investments held by Mrs. X or investments made by you in her behalf come before you judicially or involve questions of law to be decided by you.
You understand, I am sure, that the scope of this opinion is narrowly limited to the facts and circumstances described in your submission.

• As of the editing date [July 10, 2006], Maryland Code, Estates and Trusts Article, § 14-104.