Issue: May a nominee for judicial office be sworn in to office if he or she is still serving as the conservator of the person or estate in pending probate matters at the time the individual is scheduled to be sworn in as a judicial official?

Additional Facts: The nominee is the conservator in two pending matters. Although the nominee requested a hearing to be removed as conservator, hearings have not yet been scheduled.

Response: The inquiry was circulated to the Committee members and their input solicited.

The Application section of the Code of Judicial Conduct, subsection II, Time for Compliance, states as follows:

A person to whom this Code becomes applicable shall comply immediately with its provisions except that those judges to whom Rule 3.8 (Appointments to Fiduciary Positions) and 3.11 (Financial, Business, or Remunerative Activities) apply shall comply with those Rules as soon as reasonably possible, but in no event later than one year after the Code becomes applicable to the judge.

The Comment to the above provision states as follows:

If serving as a fiduciary when selected as judge, a new judge may, notwithstanding the provisions in Rule 3.8, continue to serve as fiduciary, but only for that period of time necessary to avoid serious adverse consequences to the beneficiaries of the fiduciary relationship and in no event longer than one year.

Rule 3.8 (a) states that a judge shall not accept appointment to serve in a fiduciary position, such as executor, administrator, trustee, guardian, attorney in fact, or other personal representative, except for the estate, trust, or person of a member of the judge’s family, and then only if such service will not interfere with the proper performance of judicial duties. Rule 3.8 (b) notes that a judge shall not serve in a fiduciary position if the judge as fiduciary will likely be engaged in proceedings that would ordinarily come before the judge or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction. Rule 3.8 (c) requires a judge, acting in a fiduciary capacity, to be subject to the same restrictions on engaging in financial activities that apply to the judge personally. Rule 3.8 (d) states If a person who is serving in a fiduciary position becomes a judge, he or she must comply with this Rule as soon as reasonably practicable but in no event later than one year after becoming a judge. Rule 3.10 prohibits a judge from practicing law. Rule 3.11 limits a judge’s involvement in financial, business and investment activities.

Based upon the facts presented, the language of Rule 3.8, and the Application section of the Code of Judicial Conduct, the Judicial Nominee was advised that he or she may be sworn in to office prior to his or her resignation as a conservator in the pending probate matters subject to the following conditions:

1. The Judicial Official should terminate his or her service as a conservator as soon as practicable without adverse consequences to the beneficiaries of the fiduciary relationship, and in no event longer than one year after the Code becomes applicable to the judge unless the beneficiaries are members of the Judicial Official’s family, as that term is defined in the Code. If the beneficiaries are members of the Judicial Official’s family, the Judicial Official may continue to serve, but only if such service does not interfere with the proper performance of judicial duties. (Rule 3.8).
2. The Judicial Official is subject to the limitations set forth in Rule 3.11 when acting as a conservator. (Rule 3.8 (c)).
3. The Judicial Official, in his or her capacity as a conservator, may not practice law. (Rule 3.10).

Committee on Judicial Ethics