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Ethical Opinions for Clerks of the Courts
You wrote the Committee on Ethical Opinions on November 19, 1991; your letter requested an advisory opinion on whether you could be grandfathered under the provisions of Canon 5(d)(2 to act in the capacity as Administrator of the estate of , a person for whom you had been guardian.
In general, Canon 5 (D ) restricts the fiduciary activities of those covered by the Code to fiduciary duties undertaken for those with whom a Clerk-Magistrate has a familial relationship as defined by the Code. Canon 5 (D )(2 ) allows a Clerk-Magistrate to serve as a fiduciary for a person who is not a member of his family "provided that the Clerk-Magistrate was acting in the fiduciary position prior to April 1, 1990, or that, in the case of a will designating the testator or testatrix died prior to April 1, 1990. . . . [emphasis added].
Although your service as guardian was permitted under Canon 5(D)(2)'s grandfather clause, as we had previously advised you, we do not believe that service as an administrator constitutes a mere continuation of a guardianship. This conclusion is strengthened by the fact that normally an administrator reviews the account of a guardian. It is therefore the Committee's opinion that Canon 5(D)(2) prohibits you from serving as administrator in this instance.