Opinion No. 97-10

May 7, 1997 

TOPIC: Judge's fiduciary activities and compensation. 

DIGEST: A judge may serve as executor for his or her mother's estate, but may not receive compensation for this extrajudicial activity. 

REFERENCES: Illinois Supreme Court Rules 65C, 65D(1), 65D(2) and 66; Illinois Judicial Ethics Opinion Nos. 97-5 and 97-9. 

FACTS 

A judge hired a law firm to represent the judge's mother's estate. The judge is acting as executor of the estate and indicates that the administration of the estate has not hindered his or her ability to fulfill his or her judicial duties. The judge will, however, devote hundreds of hours to those duties as executor. The judge's spouse is also assisting the judge in the administration of this estate. 

QUESTIONS 

1. May a judge act as executor for his or her parent's estate? 

2. May a judge, acting as an executor of his or her parent's estate, charge the estate an executor's fee? 

3. May the spouse of a judge acting as an executor of his or her parent's estate charge the estate a fee for his or her services in aiding in the administration of the estate? 

OPINIONS 

These questions are governed by Rules 65 and 66. Specifically, Rule 65D states: 

Fiduciary Duties. 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 the judge's family, and then only if such service will not interfere with the proper performance of the judge's judicial duties. As a family fiduciary a judge is subject to the following restrictions: 

(1) The judge should not serve if it is likely that as a fiduciary the judge will 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. 

(2) while acting as a fiduciary a judge is subject to the same restrictions on financial activities that apply to the judge in his or her personal capacity. 

Question 1 

From these provisions it seems clear that, because this is the judge's mother's estate, the judge may act as the executor -- a fiduciary activity -- so long as doing so does not involve the judge in adversary proceedings in the court or appellate jurisdiction in which the judge serves. However, while the judge may perform the services which constitute the "fiduciary activity", he or she may not receive "compensation" for the "services provided or performed". 

Question 2 

Rule 66 states in pertinent part: "A judge may not receive compensation for the law-related and extrajudicial activities permitted by this Code...for purposes of this canon, 'compensation' is a sum of money or other thing of value paid by a person or entity to a judge for services provided or performed." 

Question 3 

Regarding compensation to the judge's spouse for services performed for the estate, Rule 65C(4) places restrictions on certain financial activities of "a member of the judge's family". None of those restrictions appear to apply to legitimate work performed for the estate by the judge/executor's spouse. Consequently, the judge's spouse may receive compensation for his or her services in aiding in the administration of the estate. Caution is advised, however. To protect the judge from allegations of impropriety, special care should be taken to establish adequate documentary support for the services rendered by the spouse.