May a judge serve as conservator for an aunt and administrator of an uncle’s estate and receive a statutory fee?

Plain-English summary

A judge was asked to serve as conservator for an elderly aunt and administrator of a late uncle’s estate in another county. The judge said neither role would involve acting as an attorney or interfere with judicial duties.

The Commission held that an aunt and uncle fall within the Code’s family definition for Rule 3.8. It permitted both roles and the state-law fee of up to five percent, and said compensation must be reported under Rule 3.15.

In practice

The opinion permits the described fiduciary positions for an aunt and uncle in another county and requires reporting of any compensation.

Common questions

Q: May the judge accept both appointments?

A: Yes. The Commission permitted the conservatorship and estate administration on the stated facts.

Q: May the judge receive fees?

A: Yes. The opinion allows statutory compensation and requires its reporting.

Background and rules framework

Rule 3.8 permits specified family fiduciary appointments when they do not interfere with judicial duties and restricts proceedings before the judge. Rule 3.12 allows reasonable outside compensation; the opinion also invokes Rule 3.15 reporting.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 3.8(A)-(C), family fiduciary service and restrictions.
• Rule 3.12 and Comments 1-2, compensation.
• Rule 3.15, reporting of compensation.

See also

• WV JIC Advisory Opinion 2018-04
• WV JIC Advisory Opinion 2021-12

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2017-24, 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) 558-0 169 • FAX (304) 558-0831

December 11 , 2017

Re: JIC Advisory Opinion 2017-24.

Dear

Your recent request for an advisory opm10n was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows:

You have an elderly aunt who lives another county. A petition has been filed in that County to declare her a protected person. Her husband recently died. Neither your aunt nor your late uncle had any advance directives and no original Last Will has been found for your uncle. You are the only blood relative of your aunt who is under the age of 75 and who lives in close geographical proximity. The moving authorities on your aunt's petition and those involved in your uncle's estate have asked you to serve as Conservator for the fo1mer and as the Administrator for the latter. You do not propose to act as an attorney in the two capacities but only as the personal representative for each. You have also assured that the duties associated with each will not interfere in any way with your judicial duties. You want to know if you can serve in such capacities for your family members who reside(d) in a county where you do not sit as a judge and whether you may receive the statutorily mandated compensation of up to 5% of either estate.

To address the questions, the Commission has reviewed Rules 3.8 and 3.12 of the Code of Judicial Conduct which provide:

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 judge'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 becomes involved in adversary proceedings in the comt on which the judge serves, or one under its appellate jurisdiction.

(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.

Rule 3.12 - Compensation for Extrajudicial Activities

A judge may accept reasonable compensation for extrajudicial activities permitted by this Code or other law unless such acceptance would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality.

The Comment to the Rule 3.8 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 minim is.

Meanwhile, Comment [1] to Rule 3.12 notes that a judge is permitted to "accept ... fees.
. . for . . . . extrajudicial activities provided the compensation is reasonable and commensurate with the task performed. The judge should be mindful, however, that judicial duties must take precedence over other activities." Comment [2] states that "[c]ompensation derived from extrajudicial activities may be subject to public rep01ting."

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. The conservatorship and administratorship involve your aunt and uncle, which fall under the definition of a member ofth~judge's family set forth in the Code to mean "a spouse, domestic partner, child grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship" (emphasis added). Typically, a close familial relationship extends to the "third-degree of relationship" which includes the following persons according to the Code: "great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child,

grandchild, great-grandchild, nephew and niece" (emphasis added). Therefore, you would be able to serve in the fiduciary capacities requested pursuant to Rule 3.8.

Rule 3.12 also permits you to accept the statutorily mandated fee of up to 5% for your service. However, you are reminded, that pursuant to Rule 3.15, you must report any such compensation received on the extra-judicial compensation f01m.

Based upon the foregoing, the Commission finds that you can serve as conservator for your aunt and administrator for your uncle's estate and that you may be compensated for such pursuant to State law. The foregoing opinion addresses the issues which you have raised. If there is any further question regarding this matter do not hesitate to contact the Commission.

~
Si~ /?Y~ - Wilson, Chairperson
Judicial Investigation Commission

REW/tat