May a magistrate also serve as a county fiduciary commissioner?

Plain-English summary

A magistrate asked about serving as a paid county fiduciary commissioner, whose duties included supervising estate administrators, sending notices and reporting on probate matters.

The Commission considered Rule 3.8 and the statutory powers of a fiduciary commissioner, including estate supervision, settlement of accounts and witness examination. It found those duties and the likely case conflicts incompatible with the magistrate role and rejected concurrent service.

In practice

The opinion bars the described paid fiduciary commissioner position while serving as magistrate.

Common questions

Q: Can the magistrate keep both positions?

A: No. The Commission found concurrent service prohibited by Rule 3.8.

Q: What work created the conflict?

A: The opinion points to estate-supervision powers and numerous case conflicts with magistrate duties.

Background and rules framework

Rule 3.8 restricts judicial fiduciary appointments to specified family matters and sets limits where proceedings may come before the judge. The opinion applied those limits to the commissioner’s county probate responsibilities under W. Va. Code §§ 44-3A-35 and 44-3A-36.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 3.8(A)-(D), fiduciary appointments and restrictions.

Statutes:

• W. Va. Code §§ 44-3A-35 and 44-3A-36, county fiduciary commissioner powers and reporting.

See also

• WV JIC Advisory Opinion 2017-24
• WV JIC Advisory Opinion 2018-04

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2017-23, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831

December 4, 2017

Re: JIC Advisory Opinion 2017-23.

Dear

Your recent request for an advisory op1mon was reviewed by the Judicial Investigation Conm1ission. You want to know if you can concurrently serve as Magistrate and as a fiduciary conm1issioner for the County C011m1ission. According to you the main roles of a fiduciary commissioner are to send out letters to potential beneficiaries of estates at the beginning of probate, to supervise the executor or executrix throughout the process, to send quaiterly reports on active cases, and to send the final waiver of settlement letters to beneficiaries at the time of the estate's settlement. For each estate, the fiduciary co1mnissioner receives approximately $500.00.

To address the questions, the Co1m11ission has reviewed Rule 3.8 of the Code of Judicial Conduct w hich provides in pe1tinent pait:

Rule 3.8 - Appointments to Fiduciary Positions

(A) A judge shall not accept appointment to serve in a fiduciary position, such as executor, administrator, trustee, guardian, attorney in fact, or other personal representative, except for the estate, trust, or person of a member of the j udge's family, and then only if such service will not interfere with the proper performance of judicial duties.

(B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward

ITC Advisory Opinion 23-2017
December 4, 2017
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becomes involved in adversary proceedings in the com1 on which the judge serves, or one under its appellate jmisdiction.

(C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on engaging in financial activities that apply to a judge personally.

(D) If a person who is serving in a fiduciary position becomes a judge, he or she must comply with this Rule as soon as reasonably practicable, but in no event later than one year after becoming a judge.

The Comment to the Rule states:

A judge should recognize that other restrictions imposed by this Code may conflict with a judge's obligations as a fiduciary; in such circumstances, a judge should resign as fiduciary. For example, serving as a fiduciary might require frequent disqualification of a judge under Rule 2.11 because a judge is deemed to have an economic interest in shares of stock held by a trust if the amount of stock held is more than de minimis.

Rule 3.8 clearly forbids a judicial officer from serving as a fiduciary except in a very limited circumstance involving a family member and only if it does not interfere with his or her regular judicial duties. W. Va. Code § 44-3A-36 specifies the powers associated with fiduciary conunissioner:

The fiduciary commissioners shall have general or limited supervision, as may be, of all fiduciary matters that are referred to them, and of the fiduciaries in charge thereof, and shall make all ex pa11e settlements of the accounts of such fiduciaries. Such commissioners shall have power to sununon and compel the attendance of witnesses, to swear and examine witnesses, take their depositions and ce11ify their testimony.

Fiduciary conmussioners shall also repo11 to and settle accounts with the county clerk. W. Va. Code§ 44-3A-35. The Conunission is of the opinion that these duties along with the numerous case conflicts they would create with your obligations as a magistrate are prolubited by Rule 3.8.

Based upon the foregoing, the Conunission finds that you ca1mot concurrently serve as a magistrate and a fiduciary conunissioner. It is hoped that this opinion fully

TIC Advisory Opinion 23-2017
December 4, 2017
Page 3 of3

addresses the issues which you have raised. If there is any further question regarding this matter do not hesitate to contact the Commission.

Sincerely,

Ronald E. Wilson, Chairperson
Judicial Investigation Commission

REW/ tat