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Opinion

Opinion CJE Opinion No. 2003-3

Date: 03/14/2003
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.

Serving as Executor of Estate of Family Friend

You have asked the committee whether you may act as a co-executor of the estate of a lifelong family friend. The facts are as follows. The friend died recently in Canada at the age of ninety-seven. She named you in her will as a co-executor of her estate. Her family and yours lived in the same small Massachusetts town for many years. She and her husband were friends of your parents. As a child, you visited them from time to time. Your father acted as their attorney in a number of instances and was named as co-executor in a prior will, with you being named as his alternate in that document. In 1987, the decedent left Massachusetts for Canada to be near a close relative. Three years ago she rewrote her will, naming you and another Massachusetts attorney as co-executors. At that time she had her niece call you to be sure that you were "alive and well."

Canon 5 (D) states that:

"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."

In CJE Opinion 97-3, we closely examined the interpretation of the phrase "person with whom the judge maintains a close familial relationship." We noted that the Court of Judicial Discipline of Pennsylvania had enunciated reasonable factors to determine whether a relationship was a close familial one within the meaning of Canon 5 (D), or whether the relationship was that of good and close friends. These factors included "(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]." In re Horgos, 682 A.2d 447, 451-452 (Pa. Ct. Jud. Disc. 1996).

In CJE Opinion 97-3, we stated that a close familial relationship exists when some of these factors enumerated by the Pennsylvania court are present, and when the essence of the relationship is nurturing.

Similarly, the Indiana Commission on Judicial Qualifications has stated that where a friendship is so close as to be filial, nurturing, and lasting then a close familial relationship will be found to exist. See Advisory Opinion 5-89, Ind. Comm. Jud. Qual., cited with approval in CJE Opinion 97-3.

Based on the information you have provided, it is our opinion that, while a friendship with the decedent clearly exists, it does not rise to the level of satisfying the essence of a "close familial relationship" as defined above. Therefore, our advice is that you may not act as co-executor of your friend's estate. The fact that the estate may be probated in Canada, and not in Massachusetts, does not, in our view, alter or affect the result. Canon 5 (D) on its face applies regardless of where the probate may occur.

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