May a retired Maryland judge approved for recall serve as personal representative of a friend’s estate?

Plain-English summary

A retired judge approved for recall was named personal representative in the will of a longtime friend. The judge had held health-care and financial powers of attorney for that friend and retained counsel for administration of the estate.

Canon 4E generally restricts judges from fiduciary service, but the Committee explained that Canon 6C excepts retired judges approved for recall from that provision. It noted that administering an estate could present other ethical issues, such as frequent transactions with lawyers likely to appear before the court, but found no such issue in the request. Retaining counsel also addressed the concern that some estate work might constitute practicing law.

The Committee permitted the requested service.

In practice

The opinion permits this retired judge’s estate role based on the Canon 6C exception and the facts presented.

Common questions

Q: Does Canon 4E’s fiduciary restriction apply here?

A: No. The Committee says Canon 6C excepts retired judges approved for recall.

Q: Did the Committee rule out all possible later conflicts?

A: No. It identified potential issues that could arise during administration but found none evident in the request.

Q: Why did retaining counsel matter?

A: It addressed whether an estate-administration task might entail the practice of law.

Background and rules framework

The opinion applies the then-cited Maryland Code of Judicial Conduct, Maryland Rule 16-813, Canons 4D, 4E, 4G, and 6C.

Citations and references

• Maryland Rule 16-813, Canons 4D(1), 4E, 4G, and 6C.

See also

• Maryland Judicial Ethics Committee opinion index

Source

• Landing page: Maryland Judicial Ethics Committee opinion index
• Original PDF: Opinion 2007-18

Original opinion text

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

Maryland Judicial Ethics Committee

Opinion Request Number: 2007-18

Date of Issue: February 4, 2008

■ Published Opinion □ Unpublished Opinion □ Unpublished Letter of Advice Retired Judge, Approved for Recall, May Serve as Personal Representative of an Estate

Issue: May a retired judge, approved for recall, serve as personal representative of an estate?

Answer: Yes.

Discussion: The requesting judge has been named personal representative in the will of the decedent, a long-time friend, for whom the judge held durable powers-of-attorney for health care and financial matters. The judge has retained counsel to represent the judge in carrying out the duties of personal representative.

In general, with certain exceptions, a judge is prohibited from serving as a fiduciary. Rule 16-813, Maryland Code of Judicial Conduct, Canon 4E. 1 Retired judges, approved for recall, are subject to Rule 16-813, with certain exceptions. Canon 6C. Among those exceptions is Canon 4E.

It is conceivable that in the course of administering an estate other ethical issues might arise, e.g., frequent transactions with lawyers likely to come before the court. Canon 4D(1). However, there is nothing evident in the judge’s request to suggest that any such issues might arise. Indeed, by retaining counsel, the requesting judge has proactively addressed the question of whether any function of the administration of the estate might entail the practice of law. Canon 4G.

For these reasons, it is the opinion of the Committee that the judge may serve as personal representative of the estate.

Application: The Judicial Ethics Committee cautions that this opinion is applicable only prospectively and only to the conduct of the requestor described in this opinion, to the extent of the requestor’s compliance with this opinion. Omission or misstatement of a material fact in the written request for opinion negates reliance on this opinion.

Additionally, this opinion should not be considered to be binding indefinitely. The passage of time may result in amendment to the applicable law and/or developments in

1
By definition, the term “fiduciary” includes administrator, attorney-in-fact by power of attorney, executor, guardian, personal representative, and trustee. Rule 16-813, Terminology. Maryland Judicial Ethics Committee Opinion Request Number: 2007-18 Date of Issue: February 4, 2008
■ Published Opinion □ Unpublished Opinion □ Unpublished Letter of Advice Page 2 of 2

the area of judicial ethics generally or in changes of facts that could affect the conclusion of the Committee. If you engage in a continuing course of conduct, you should keep abreast of developments in the area of judicial ethics and, in the event of a change in that area or a change in facts, submit an updated request to the Committee.