Can a judge serve as executor of a close friend's estate?

Plain-English summary

The Board addressed whether a judge may serve as executor of the estate of a close friend who named the judge in the will. Canon 5D restricts a judge's fiduciary service to "the estate, trust, or person of a member of his [her] family," and then only if it will not interfere with judicial duties; the canon defines "member of his [her] family" to include a spouse, child, grandchild, parent, grandparent, "or other relative or person with whom the judge maintains a close familial relationship." The Board recounted that Ohio's predecessor Canon 27 had authorized broader fiduciary service, and that the drafters of the ABA canon considered but did not adopt express exceptions for "close friends."

Surveying the split among states interpreting "member of his [her] family," the Board noted opinions from New York City and Indiana allowing a judge to serve as fiduciary for a close friend whose relationship bore the characteristics of a family relationship. The Board adopted that view: a judge is not prohibited from serving as executor of a close friend's estate, when named in the will, so long as (1) the relationship was characteristic of a "close familial relationship" under Canon 5D, (2) the service will not interfere with the judge's judicial duties (Canon 5D(1)), and (3) the judge manages investments and financial interests to minimize disqualifications (Canon 5D(2)). The absence of children or relatives in the area did not alter the advice, and the Board assumed the judge did not prepare the friend's will, citing Op. 89-14, Op. 88-36, and Krischbaum v. Dillon.

On the second question, the Board concluded that, unless unusual circumstances created an appearance of impropriety under Canon 2, nothing in the Code prohibited a judge authorized to serve as executor from doing so where the judge and the judge's spouse were devisees.

Currency note

This opinion issued in 1991 under Ohio's former Code of Judicial Conduct (superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009). The Board's status list also notes it is not current due to subsequent rule amendments to Canons 1 through 6 of the former Code of Judicial Conduct, effective May 1, 1997. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule mentioned here.

Common questions

Q: Can a judge be executor for someone who is not a blood relative?

A: Under this opinion, yes, if the relationship was characteristic of a close familial relationship under Canon 5D and the service does not interfere with the judge's duties; the Board read "member of his [her] family" to include such a close friend.

Q: Does it matter that no relatives were available to serve?

A: No. The opinion stated that the advice is not altered by the absence of children or relatives in the area to serve as executor.

Q: Can the judge serve if the judge and the judge's spouse are devisees?

A: The opinion concluded that, unless unusual circumstances create an appearance of impropriety under Canon 2, nothing in the Code prohibits a judge authorized to serve as executor from doing so when the judge and spouse are devisees.

Background and rules framework

The opinion interprets the former Code of Judicial Conduct Canon 5D (fiduciary activities limited to family members) and its subsections 5D(1) (no service likely to draw the judge into proceedings before the court) and 5D(2) (a fiduciary judge is subject to the same financial-activity restrictions as in a personal capacity), together with Canon 2 (avoiding the appearance of impropriety). It also references the former Code of Professional Responsibility EC 5-5 in connection with a judge or lawyer being named in a will he or she prepared.

Citations and references

Rules of Judicial Conduct (Ohio, former):

• Canon 5D, fiduciary service limited to family members
• Canon 5D(1), service likely to lead to proceedings before the court
• Canon 5D(2), financial-activity restrictions on a fiduciary judge
• Canon 2, appearance of impropriety

Cases:

• Krischbaum v. Dillon, 58 Ohio St. 3d 58 (1991), rebuttable presumption of undue influence when an attorney prepares a will naming himself a beneficiary

Other opinions cited:

• Ass'n of the Bar of the City of New York Op. 1988-2 (1988); Indiana Sup.Ct. Op. 5-89 (1989): judge as fiduciary for a close familial friend
• Ohio Sup.Ct. Ops. 89-14 (1989), 88-36 (1988): lawyer or judge and will preparation

See also

• Ohio BPC Op. 1989-014: Lawyer Named Executor in a Will
• Ohio BPC Op. 1989-022: Judge as Trustee of an Asbestos Claims Fund
• Ohio BPC Op. 1990-016: Judge as Trustee of a Scholarship Foundation
• Ohio BPC Op. 1987-050: Judge as Trustee of a Religious Retirement Plan

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-91-021.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 91-21
Issued August 16, 1991

[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]

[Not Current- subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997]

SYLLABUS: A judge is not prohibited from serving as the executor of a close friend's estate, when named as executor in the will, so long as 1) the relationship with the friend was characteristic of a "close familial relationship," as required by Canon 5D; 2) such service will not interfere with the proper performance of the judge's judicial duties in violation of Canon 5D (l); and 3) the judge manages his [her] investments and other financial interests to minimize the number of cases in which he [she] is disqualified as required by Canon 5D (2). Unless there are unusual circumstances which would create an appearance of impropriety under Canon 2, there is nothing in the Code of Judicial Conduct that would prohibit a judge, who is authorized by the Code to serve as executor, from serving in such capacity when the judge and the judge's spouse are devisees.

OPINION: We have before us a request for an advisory opinion on whether a judge is prohibited from serving as the executor of an estate of a close friend. The questions raised are as follows:

1. Whether a judge is prohibited from serving as the executor of a close friend's estate when named as executor in the will and when there are no surviving children or relatives in the area to act as executor;

2. Whether a judge is prohibited from serving as the executor of a close friend's estate when named as executor in the will and when the judge and the judge's spouse have been named as devisees.

Question 1

Canon 5D of the Code of Judicial Conduct clearly sets forth restrictions on the fiduciary activities of judges. Canon 5D states:

A judge should not serve as the executor, administrator, trustee, guardian, or other fiduciary, except for the estate, trust, or person of a member of his [her] family, and then only if such service will not interfere with the proper performance of his [her] judicial duties. "Member of his [her] family" includes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. As a family fiduciary a judge is subject to the following restrictions:

(1) He [she] should not serve if it is likely that as a fiduciary he [she] will be engaged in proceedings that would ordinarily come before him [her], or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which he [she] serves or one under its appellate jurisdiction.

(2) While acting as a fiduciary a judge is subject to the same restrictions on financial activities that apply to him [her] in his [her] personal capacity.

In Ohio, the predecessor rule to Canon 5D was Canon 27 which authorized a judge to act in a fiduciary capacity for any activity that did not interfere with his [her] judicial duties. However, the range of persons for whom the judge was authorized to act as a fiduciary was considered too broad and there was concern that the judge would appear to the public as having an advantage in his or her representation of an estate. See E. Thode, Reporter's Notes to Code of Judicial Conduct 87-88 (1973). The drafters of the ABA Code of Judicial Conduct considered creating exceptions for fiduciary relationships such as "'close friends,' 'former clients,' and 'named executor in a will of a living testator on the date the Code became effective,'" but did not do so. Id. Thus, it follows that Canon 5D was adopted in Ohio with the intent to restrict the judge's fiduciary capacity to "members of his [her] family."

However, in states that have adopted the language of Canon 5D there is a disagreement as to the interpretation of "members of his [her] family." Some state ethics committees advise that only blood or marriage relations are considered part of "his [her] family," while other state committees include close friends with familial characteristics as part of "his [her] family." For example, a New York City opinion advises that a judge may accept an appointment as executor to the estate of "a close familial" friend for many years. Ass'n Bar of City of New York, Op. 1988-2 (1988). Similarly, an Indiana opinion maintains that a judge having a "close relationship bearing the characteristics of a family relationship" to the decedent creates no appearance of impropriety if the judge becomes executor of the estate. Indiana Sup.Ct, Op. 5-89 (1989).

This Board is of the opinion that a judge is not prohibited from serving as the executor of a close friend's estate, when named as executor in the wills so long as 1) the relationship with the friend was characteristic of a "close familial relationship," as required by Canon 5D; 2) such service will not interfere with the proper performance of the judge's judicial duties in violation of Canon 5D (1); and 3) the judge manages his [her] investments and other financial interests to minimize the number of cases in which he [she] is disqualified as required by Canon 5D (2). This advice is not altered by the fact that there are no children or relatives in the area to serve as executor. Further, this advice is based upon the assumption that the judge did not prepare the will for the close family friend. See Ohio Sup.Ct, Op. 89-14 (1989) wherein this Board advised that a lawyer preparing a will for a client may not attempt to influence or encourage the client to name the lawyer as executor, Ohio Sup.Ct, Op, 88-36 (1988) wherein this Board advised that full-time judges may not engage in the practice of law by preparing wills; and Krischbaum v. Dillon, 58 Ohio St. 3d 58 (1991), wherein the Supreme Court of Ohio found, based upon EC 5-5 of the Code, a rebuttable presumption of undue influence exists when an attorney, unrelated to the testator, prepares a will in which he or she is a beneficiary.

Question 2:

Unless there are unusual circumstances which would create an appearance of impropriety under Canon 2, there is nothing in the Code of Judicial Conduct that would prohibit a judge, who is authorized by the Code to serve as executor, from serving in such capacity when the judge and the judge's spouse are devisees.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Code of Professional Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.