May a Maryland judge remain personal representative, trustee and guardian for the family of a former client unrelated to the judge?

Plain-English summary

A judge had been appointed personal representative and trustee for a former client’s estate and guardian of the client’s disabled spouse’s property. The people involved were not within the statutory family exceptions.

The Committee said the estate’s administration in another Maryland county made conflict with the judge’s court unlikely under Canon XXVI. But it concluded that Maryland statutory law prohibited continued service in all three roles; its two specific statutory citations address personal representatives and trustees. The statutory bar controlled its answer.

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 Canon XXVI itself require resignation on these facts?

A: The Committee said the described roles were unlikely to interfere with judicial duties under that canon.

Q: What drove the final prohibition?

A: The Committee concluded that Maryland statutory law barred continued fiduciary service for these nonrelatives.

Background and rules framework

The opinion applies Maryland’s then-cited Canon XXVI and Estates and Trusts Article §§ 5-105(5) and 14-104 to a judge’s fiduciary appointments.

Citations and references

• Maryland Canons of Judicial Ethics, Canon XXVI.
• Md. Estates and Trusts Article §§ 5-105(5) and 14-104, as then cited.

See also

• MD Judicial Ethics Op. 1978-05
• MD Judicial Ethics Op. 1980-04

Source

• Landing page: Maryland Judicial Ethics Committee opinion index
• Original PDF: Opinion 1977-10

Original opinion text

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

Maryland Judicial Ethics Committee

Opinion Request Number: 1977-10

Date of Issue: December 7, 1977

O Published Opinion G Unpublished Opinion G Unpublished Letter of Advice

Judge Not to Serve as Personal Representative of Estate of or Guardian for Nonrelative

You have asked for an advisory opinion from the Judicial Ethics Committee as to the propriety of your serving as Personal Representative, Trustee and Guardian of the X Estates.
We are informed in your letter that for many years you represented Mr. and Mrs. X, the parents in law of one of your brothers. You advise that Mr. X died on April 22, 1976, you qualified as Personal Representative of the estate and filed a First AdministrationAccount whichwas approved on May 5, 1977. Distribution of the estate was made to Y Trust Company and yourself, Trustees. You stated that a refund is expected from I.R.S. whichwill necessitate the filing of a Second Administrative Account. On December 13, 1976, by Decree of the Circuit Court for Z County you were appointed Guardian of the property of Mrs. X, a disabled person. Mrs. X is a resident of Z County, Maryland and the proceedings were brought by her two children who live in Z County, Maryland, and
, Ohio, respectively.
You inquire whether it is proper for you:
(1) To prepare and file a Second Administration Account as Personal Representative of the estate of Mr. X.
(2) To continue to serve as testamentary Trustee under Mr. X’s Will.
(3) To continue to serve as Guardian of the property of Mrs. X.
Maryland Canon XXVI provides:
“While a Judge is not absolutely disqualified from holding a fiduciary position, he should not accept or continue to hold any such position if the holding of it would interfere or seem to interfere with the proper performance of his judicial duties, or if the business interests of those represented require investments and enterprises that are apt to come before him judicially, or to be involved in questions of law to be determined by him.” Since you are a resident judge of A County and the X Estates are being administered in Z County, there is little likelihood in the circumstances which you have described, that your continuing to serve as Personal Representative, Trustee and Guardian would interfere with the proper performance of your judicial duties, or that matters involving the estates would be likely to come before you.
However, Maryland Code (1974) Estates and Trusts Article, § 5-105(5)* provides, in effect, that letters testamentary may not be granted to a full time judge of a court established under the laws of Maryland, unless he is a surviving spouse or is related to the decedent within the third degree.
Estates and Trusts Article, § 14-104 provides that a judge of any court established under the laws of this State, unless he is the surviving spouse of the grantor of the trust, or is related to the grantor within

• As of the editing date [July 10, 2006], Maryland Code, Estates and Trusts Article, § 5-105(b)(5).
  Maryland Judicial Ethics Committee
  Opinion Request Number: 1977-10
  Date of Issue: December 7, 1977
  O Published Opinion G Unpublished Opinion G Unpublished Letter of Advice Page 2 of 2

the third degree, may not serve as a Trustee of any inter vivos or testamentary trust created by an instrument and executed in Maryland by the grantor or any trustee, administered in the State, or governed by the laws of the State, unless he was actually serving as the Trustee of the trust on December 31, 1969.
It is our opinion that while Maryland Canon XXVI may not be violated, the statutory law of Maryland prohibits you from continuing to serve as Personal Representative, Trustee and Guardian in the X estates.