Ohio Board Advisory Opinion Op 91-021

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 91-21
Issued August 16, 1991
[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the
Ohio Code of Judicial Conduct, eff. 3/1/2009.]
[Not Current- subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997]
SYLLABUS: A judge is not prohibited from serving as the executor of a close friend's estate,
when named as executor in the will, so long as 1) the relationship with the friend was
characteristic of a "close familial relationship," as required by Canon 5D; 2) such service will not
interfere with the proper performance of the judge's judicial duties in violation of Canon 5D (l); and
3) the judge manages his [her] investments and other financial interests to minimize the number of
cases in which he [she] is disqualified as required by Canon 5D (2). Unless there are unusual
circumstances which would create an appearance of impropriety under Canon 2, there is nothing in
the Code of Judicial Conduct that would prohibit a judge, who is authorized by the Code to serve as
executor, from serving in such capacity when the judge and the judge's spouse are devisees.
OPINION: We have before us a request for an advisory opinion on whether a judge is prohibited
from serving as the executor of an estate of a close friend. The questions raised are as follows:
1. Whether a judge is prohibited from serving as the executor of a close
friend's estate when named as executor in the will and when there are
no surviving children or relatives in the area to act as executor;
2. Whether a judge is prohibited from serving as the executor of a close
friend's estate when named as executor in the will and when the judge
and the judge's spouse have been named as devisees.

Op. 91-21 2
Question 1
Canon 5D of the Code of Judicial Conduct clearly sets forth restrictions on the fiduciary activities
of judges. Canon 5D states:
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 [her] family, and
then only if such service will not interfere with the proper performance of his [her]
judicial duties. "Member of his [her] 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 [she] should not serve if it is likely that as a fiduciary he
[she] will be engaged in proceedings that would ordinarily
come before him [her], or if the estate, trust, or ward becomes
involved in adversary proceedings in the court on which he
[she] 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 [her] in his
[her] personal capacity.
In Ohio, the predecessor rule to Canon 5D was Canon 27 which authorized a judge to act in a
fiduciary capacity for any activity that did not interfere with his [her] judicial duties. However, the
range of persons for whom the judge was authorized to act as a fiduciary was considered too broad
and there was concern that the judge would appear to the public as having an advantage in his or
her representation of an estate. See E. Thode, Reporter's Notes to Code of Judicial Conduct 87-88
(1973). The drafters of the ABA Code of Judicial Conduct considered creating exceptions for
fiduciary relationships such as "'close friends,' 'former clients,' and 'named executor in a will of a
living testator on the date the Code became effective,'" but did not do so. Id. Thus, it follows that
Canon 5D was adopted in Ohio with the intent to restrict the judge's fiduciary capacity to "members
of his [her] family."

Op. 91-21 3
However, in states that have adopted the language of Canon 5D there is a disagreement as to the
interpretation of "members of his [her] family." Some state ethics committees advise that only
blood or marriage relations are considered part of "his [her] family," while other state committees
include close friends with familial characteristics as part of "his [her] family." For example, a New
York City opinion advises that a judge may accept an appointment as executor to the estate of "a
close familial" friend for many years. Ass'n Bar of City of New York, Op. 1988-2 (1988).
Similarly, an Indiana opinion maintains that a judge having a "close relationship bearing the
characteristics of a family relationship" to the decedent creates no appearance of impropriety if the
judge becomes executor of the estate. Indiana Sup.Ct, Op. 5-89 (1989).
This Board is of the opinion that a judge is not prohibited from serving as the executor of a close
friend's estate, when named as executor in the wills so long as 1) the relationship with the friend
was characteristic of a "close familial relationship," as required by Canon 5D; 2) such service will
not interfere with the proper performance of the judge's judicial duties in violation of Canon 5D (1);
and 3) the judge manages his [her] investments and other financial interests to minimize the
number of cases in which he [she] is disqualified as required by Canon 5D (2). This advice is not
altered by the fact that there are no children or relatives in the area to serve as executor. Further,
this advice is based upon the assumption that the judge did not prepare the will for the close family
friend. See Ohio Sup.Ct, Op. 89-14 (1989) wherein this Board advised that a lawyer preparing a
will for a client may not attempt to influence or encourage the client to name the lawyer as
executor, Ohio Sup.Ct, Op, 88-36 (1988) wherein this Board advised that full-time judges may not
engage in the practice of law by preparing wills; and Krischbaum v. Dillon, 58 Ohio St. 3d 58
(1991), wherein the Supreme Court of Ohio found, based upon EC 5-5 of the Code, a rebuttable
presumption of undue influence exists when an attorney, unrelated to the testator, prepares a will in
which he or she is a beneficiary.

Op. 91-21 4
Question 2:
Unless there are unusual circumstances which would create an appearance of impropriety under
Canon 2, there is nothing in the Code of Judicial Conduct that would prohibit a judge, who is
authorized by the Code to serve as executor, from serving in such capacity when the judge and the
judge's spouse are devisees.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions regarding
the application of the Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Code of Professional
Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.