Serving as Executor

April 22, 1997

CJE Opinion No. 1997-3

You have asked this Committee's advice concerning the propriety of your serving as executor of the estate of the late ______ ______.

Canon 5(D) provides:

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 family, and then only if such service will not interfere with the proper performance of his judicial duties. 'Member of his 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 should not serve if it is likely that as a fiduciary he will be engaged in proceedings that would ordinarily come before him, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which he 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 in his personal capacity."

In your letter, you informed us that you are not related by either blood or marriage to any member of the decedent's family; rather you had maintained a long and close friendship with the decedent and his spouse. The decedent named you as executor of his estate. He has now passed away.

Canon 5(D) provides that a judge cannot serve as an executor or other fiduciary except for a member of her family, which includes a "person with whom the judge maintains a close familial relationship." It is significant that the Canon 5(D) definition of family member is broader than the definition of that same term in Canon 5(C)(5) which addresses issues of gifts, bequests, favors, and loans. Under Canon 5(C)(5), a family member means "any relative of a judge by blood or marriage, or a person treated by a judge as a member of his family, who resides in his household." Notes on Canon 5(D) recognize its more expansive but still narrow definition of family member.

"The phrase 'member of his family' is broadly defined so that a judge may act as a fiduciary for the estate trust, or person of a spouse, child, grandchild, parent, grandparent, or any other relative or person with whom the judge maintains a close familial relationship. Depending on the circumstances, the 'other . . . person' category could include a stepchild, foster parent, or other person to whom the judge is not legally related . . . . Other possible fiduciary relationships - such as those involving 'close friends' . . . were considered and rejected by the Committee [American Bar Association Special Committee on Standards of Judicial Conduct]." Thode, Reporter's Notes to Code of Judicial Conduct 88 (1973).

We think that the plain language of Canon 5(D) means that under certain circumstances a close familial relationship can exist between persons who are not related by blood or marriage and who do not live in the same household. The few jurisdictions that have reviewed the meaning of close familial relationship for Canon 5(D) purposes support our view. The Court of Judicial Discipline of Pennsylvania in the case of In Re Horgos, 682 A2d 447, 451 (Pa. Ct. Jud. Disc. 1996), held that Canon 5(D) "encompass[es] relationships between persons who cannot claim to be related by blood or marriage, or to have lived together." Recognizing that a close friendship between two persons does not in itself establish a close familial relationship, the Pennsylvania court enunciated reasonable factors to be used in determining whether a relationship was a close familial one within the meaning of Canon 5(D) or whether the relationship was simply that of good and close friends. Id. at 451-452. In our view, that court, in establishing these factors, appropriately relied not just on traditional family structures but also on "the elements that distinguish the interaction common to traditional family relationships." Id. at 451. With this as its basis, the court held that factors indicative of a close familial relationship rather than a mere friendship include: "(1) intimacy of address, (2) recognition by others of a close relationship, (3) shared meals, (4) frequent contact either by phone or in-person, (5) shared holidays, (6) shared family events, (7) assistance with physical, medical, legal or emotional needs, and (8) longevity [of the relationship]." Id. at 451-452.

Noting that not every factor need be present for a close familial relationship to exist, we agree with the Pennsylvania court's view that a close familial relationship may exist when some of the factors outlined above are present and when the essence of the relationship is nurturing. Id. at 452. This standard of determination is compatible with the Indiana Commission of Judicial Qualifications' opinion that where a friendship is so close as to be filial, nurturing and lasting then a close familial relationship will be found to exist. Advisory Opinion #5-89, Ind. Comm. Jud. Qual. See also, Matter of Peeples, 374 S.E.2d 674, 677-678 (S.C. 1988).

In your letter, you stated that your friendship with the decedent began almost thirty years ago. More than fifteen years ago, the decedent married another friend of yours. Your close relationship with them at that time was evidenced by your presence at their wedding where only four of the fifteen guests were not related to the couple. You also arranged for the celebrant who officiated at the ceremony. Additionally, you inform us that thereafter not only did you frequently socialize with the decedent and his spouse but you also regularly shared holidays and religious holy days with them. The decedent's family was also included in your own family celebrations. The decedent's trust in you over the years is evidenced in many ways. You tell us in your letter that the decedent completely shared with you his personal financial information and sought your advice with respect to his finances, including estate planning. Until the time of his death, he relied on you for advice and guidance concerning family problems and looked to you for support in times of family crisis. In particular, he relied on you to assist him in adequately providing for his brother. Based on your letter, the decedent not only relied on you for necessary family advice and support but entrusted you with decision-making powers involving what appears to have been the decedent's extensive interest in and support for various charitable organizations.

Based on the information you provided, it is our opinion that at the time of his death you had a close familial relationship with the decedent, similar to that of trusted siblings. We reach this opinion by applying the earlier stated factors to the facts you shared with us in your letter. We have considered whether satisfaction of those factors evidences a nurturing and lasting relationship of personal trust, support and reliance. The information you supplied to us established that until the time of his death such a relationship did exist between you and the decedent.

Accordingly, it is the opinion of the Committee that you may accept appointment as executor of the decedent's estate, provided that it does not interfere with the performance of your judicial duties. In your letter, you particularize how you have tentatively arranged for counsel to handle the day-to-day management of the estate. If it appears likely that as the executor you would be engaged in proceedings that would ordinarily come before you or if the estate becomes involved in adversary proceedings in the court on which you serve or one under its appellate jurisdiction, you must resign as executor. Canon 5(D)(1). We also remind you that as a judge your financial activities with regard to the estate are restricted to the same extent as your personal financial activities. Canon 5(D)(2)