CJE Opinion No. 2008-3
Withdrawal From Trustee Position After Appointment to Judgeship
April 18, 2008
CJE Opinion No. 2008-3
You have requested an opinion from the Committee on Judicial Ethics regarding your obligations to a trust for which you are the trustee. According to your letter to the committee, (1) you were recently appointed as a judge of one of the Trial Court departments. Years ago, a friend asked if you would serve as a trustee of a trust drawn for him by an experienced estate lawyer. You agreed and commenced your service. Your service did not involve management of the money which, in accordance with the settlor's request, was overseen by the settlor's financial manager. Problems of interpretation arose after the settlor's death. Litigation to reform the trust began and was in progress at the time of your nomination. The litigation was, and is, "friendly," in the sense that all parties desire the same outcome.
After your nomination, you found a lawyer who agreed to serve as a successor trustee. The beneficiaries assented and you resigned. After you were sworn in, however, the successor trustee changed his mind and notified your former law partner that he would not agree to serve and your former partner now is trying to find another person or entity to serve. While the search proceeds, your former partner has been handling the trust business -- chiefly overseeing payment of monthly checks to beneficiaries and preparation of tax returns -- but she does not intend to continue practicing law and is unwilling to become a trustee.
The litigation, initially filed in the Probate and Family Court, proceeded to the Supreme Judicial Court where, after briefs were filed, the court ordered the parties to submit additional evidence on a number of issues. The court also noted your appointment and said that you "may wish to consider whether, in light of [your appointment] it is permissible (and prudent) for [you] to continue acting" as a trust fiduciary. Under those circumstances, you have asked for an opinion regarding your obligations under the Code of Judicial Conduct. (2)
Two provisions of the Code of Judicial Conduct are applicable to the question you raised, one specific and one general. The more specific is Section 4E, which, in pertinent part, says as follows:
"A judge shall not serve as an executor, administrator, trustee, guardian, or other fiduciary*, (3) except for the estate, trust, or person of the judge's spouse, domestic partner, child, grandchild, parent, or grandparent, as well as another relative or person with whom the judge maintains a close familial relationship. (4)
Section 6B of the Code anticipates the transitional problems compliance with Section 4E may engender and requires that "[a] person to whom this Code becomes applicable . . . shall comply with [Section 4E] as soon as reasonably possible and in any event within one year."
The more general provision of the Code is Section 2A, which, again in pertinent part, says that "[a] judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
Against the backdrop of those sections your request for advice can be divided into parts, i.e., your service as a trustee generally and your service as a trustee for a trust involved in litigation. Insofar as service as a trustee generally is concerned, your obligation is to extricate yourself from your fiduciary responsibilities "as soon as reasonably possible and in any event within one year." The language of that provision is quite clear and requires that you attempt to extricate yourself as quickly as you reasonably can with one year marking the outside limit. See CJE Opinion 2005-9.
The advice contained in the preceding paragraph would end the matter were the trust not involved in litigation. But it is and, therefore, Section 2A is of primary significance. In the committee's opinion, a judge's participation in litigation, even "friendly" litigation, in a representative capacity is inconsistent with promotion of public confidence in the integrity and impartiality of the judiciary. Public confidence in judicial integrity and impartiality requires, at a minimum, a belief that no one has an inside track when it comes to pursuit of judicial decisions. A judge's action in a representative capacity to obtain a judicial decision that may benefit those with whom the judge is aligned inevitably challenges that belief in a profound and fundamental way.
The committee is of the opinion, therefore, that your continued service as a trustee of this trust while it is in litigation would be inconsistent with your obligations under Section 2A of the Code. Consequently, you should take such steps as are appropriate to remove yourself as a trustee promptly and should instruct whoever is handling the litigation to seek a stay of proceedings in the appropriate court to permit you to do so. While the committee recognizes your desire to engage a successor trustee who will be agreeable to the beneficiaries, if you are unable to engage an agreeable successor promptly, and if a provision of the trust contains a mechanism for appointment of a successor trustee when a willing successor cannot be found, you should utilize that provision to produce your successor.
1 Your letter is actually an email which, at your request, the committee treats as a request for formal advice.
2 Although your letter does not say so, the committee assumes that you revoked your resignation and resumed your status as trustee when your putative successor changed his mind and refused to serve.
3 "Fiduciary" is a term defined in the definitions section of the Code and, as one might expect, includes a "trustee."
4 Then follow a series of constraints on a judge's service as a family fiduciary which need not be quoted here because, from the content of your letter, you are not a family fiduciary. See CJE Opinions 97-3, 2000-2, and 2003-3.