ON STANDARDS OF JUDICIAL CONDUCT
OPINION NO. 07 - 2013
RE: Propriety of a family court judge serving as a “tie-breaker” for friend if the co-trustees/co-executors cannot agree on an issue.
A family court judge has an elderly family friend who has appointed her two children as co-executors of her will and co-trustees of her property. The judge has known the friend for many years and while their relationship is one of friendship and respect, the judge does not consider this friend to be like a member of the family. The judge’s friend has asked that the judge serve as a “tie-breaker” if the co-trustees/co-executors cannot agree on an issue. The judge would not actually serve as personal representative/executor or trustee and would only be required to take action if there is a tie vote between the other executors/trustees. The judge inquires as into the propriety of such service.
A judge may not serve as a “tie-breaker” vote between two executors or trustees for a family friend.
The Code of Judicial Conduct states that “[a] judge shall not serve as executor, administrator or other personal representative, trustee, guardian, conservator, attorney in fact or other fiduciary.” Canon 4E(1). Here, while the judge would not be formally appointed as an executor or trustee, the “tie-breaker” position would fall into the category of “other fiduciary” as the judge would be making decisions that affect the friend’s estate and property.
The Code provides a limited exception to the prohibition against serving as a fiduciary, stating, “[a] judge may serve in one of these capacities for the estate, trust or person of a member of the judge’s family, but only if such service will not interfere with the proper performance of judicial duties.” However, the canon only allows a judge to serve in such a fiduciary capacity for a “member of the judge’s family.” In the “Terminology” section of the Code of Judicial Conduct, this phrase is defined as: “a spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familial relationship.” Rule 501, SCACR (emphasis added). While the Code allows a judge to act as a fiduciary for a non-family member, that person must be someone with a close familial relationship with a judge. As stated in Opinion 14-2011, if the relationship is merely friendship, the judge should not serve in the fiduciary capacity.
Here, while the judge has maintained a long-time friendship with the person who seeks to appoint him as tiebreaker, the nature of the friendship is not one of a close familial relationship. Thus, the judge should decline to serve as the tiebreaker.
August 9, 2013