Serving as a Trustee, Close Family-Like Relationship
June 28, 2016
You request the Committee's advice as to whether you may serve as a trustee of a trust established by a close friend. The friend would serve as the co-trustee; the trust beneficiaries would be the two sons of your friend, although your friend could have access to trust funds under certain circumstances.
Your request includes the following additional facts. You have been close friends for over twenty years. You live within several blocks of each other. You and your spouse have dinner with your friend and his spouse approximately once per month, and you see your friend approximately one additional time each month, often for day-long activities. You have vacationed together many times, including twice within the past fourteen months. You celebrate two major religious holidays together almost every year. The close family ties extend to your friend's children and your own children.When your friends' children or your own children are home visiting, you make it a point to get together. When your children were younger, you and your spouse served as emergency contacts for your friend's children, and vice versa. You consider this friend to be one of a very small group of closest, most important friends. There is no family other than your siblings with whom your family has a closer relationship. Finally, you note that you have no reason to believe that your service as a trustee would interfere with your judicial duties, and no reason to believe that the trust is likely to be engaged in adversary proceedings.(1)
Rule 3.8(A) of the Code of Judicial Conduct permits a judge to serve as a fiduciary "for the estate, trust, or person of a member of the judge's family" so long as "such service will not interfere with the proper performance of judicial duties." The Code defines "a member of the judge's family" to include a person "with whom the judge maintains a close family-like relationship."
To determine whether your relationship with your friend qualifies as a close family-like relationship, the Committee considers the following factors to be relevant: (1) the length of the relationship; (2) the nature and degree of contact; (3) the sharing of special occasions (e.g. holidays, family events, vacations); (4) the commitment to assist with medical, legal, caretaking, and emotional needs; and (5) your own assessment of the significance of the relationship in your life. No one factor is determinative in distinguishing a close family-like relationship from ordinary friendship; the result is based on an overall evaluation of the status of the relationship.
The Committee concludes that the relationship you describe is a close family-like relationship under the Code of Judicial Conduct, and that you may serve as a trustee of your friend's family trust.(2) The Committee’s decision is based on the long length of the friendship, the frequent and regular contact, the sharing of vacations and holidays, your mutual service as emergency medical contacts, and your own assessment of the significance of this relationship in your life.
(1) This opinion relies on the facts you have provided to the Committee on Judicial Ethics. If material facts have been omitted or misrepresented, this opinion is without force and effect.
(2) The Code prohibits you from practicing law during the course of your service, and requires you to terminate your service if the trust becomes involved in adversary proceedings in the court on which you serve. See Rule 3.8(B) and Rule 3.10.