NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.
March 30, 1994
A part-time judge may serve as the conservator of a protected person but should decline if such service would impose on the performance of judicial duties, detract from the dignity of judicial office, or if it would constitute the use of the prestige of office to advance the personal interests of the judge or others.
A part-time judge may not serve as conservator of a business or other enterprise.
References: MCJC 2C, 5C, 5D; J-3; JI-77; MCL 700.470, MCL 700.484, MCL 700.582, MCL 730.522.
A part-time municipal judge and practicing lawyer inquires as to the ethical propriety of serving as a conservator for the estate of an aged and infirm individual who is not related by blood or marriage. This Committee is not designed to interpret the law, and therefore, the following references to any law is done for t he purpose of addressing possible ethical issues.
Michigan law generally precludes judges from serving "as fiduciary in an estate except for a member of [the] immediate family." MCL 700.582; MSA 27.5582. A 1988 amendment to this law specifically excludes municipal court judges, and therefore, a part-time municipal judge may legally be appointed the conservator of an estate. Depending upon the circumstances of each case, the conduct of the part-time judge and lawyer may still raise ethical issues.
In contrast to MCL 700.582 and MSA 27.5582, MCJC 5D states:
"A judge should not serve as an executor, administrator, testamentary trustee, or guardian except for . . . a member of the judge's immediate family, and then only if such service will not interfere with the proper performance of judicial duties."
It is therefore not ethical for a full-time judge to serve as conservator except for a member of the judge's immediate family and under the conditions listed.
Whether the same prohibition applies to part-time judges is not as clear. The Committee has opined that part-time judges are not prohibited from the private practice of law, despite the prohibition for full-time judges found in MCJC 5F. See J-2, JI-29, JI-42, JI-56, JI-77, RI-1, RI-129. In instances in which money handling has been involved (e.g., participation in a business, participation on charitable/civic boards, fund-raising, etc.) the ethics rules prohibiting participation by full-time judges have been equally applied to part-time judges. J-1, J-3. In order to determine whether the MCJC 5D restrictions should apply equally to part-time judges, we look to the nature of the duties of a conservator.
The term "conservator" is not listed in this Canon, however, it would appear that this prohibition is designed to cover the role and duties of a "fiduciary." The rationale for this limitation is addressed in Section 7.25 of Shaman, Lubet, Alfini, Judicial Conduct and Ethics, The Michie Company, 1992, where it was noted that:
"The limitation was added out of concern that private parties might appear to gain some advantage by obtaining a judge to act as executor, trustee, administrator, or guardian. Family service, on the other hand, was considered to be a sufficient counterworking factor to outweigh whatever appearance of advantage." Id at 196.
Pursuant to MCL 700.470, and MSA 27.5470, the probate court has the authority to appoint an individual who is deemed to be "suitable and qualified" as a conservator of the estate of a protected person. The duties, responsibilities, and authority of the conservator can be extremely broad unless restricted by the probate court. MCL 700.484; MSA 27.5484. Pursuant to the statute there are certain powers which could raise possible conflicts for a judge as exemplified by the following:
". . . (3)(s) Pay or contest a claim; to settle a claim by or against the estate or the protected person by compromise, arbitration, or otherwise;
". . .
"(x) Prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his or her duties."
It is obvious that to the extent such activity would impose on a part-time judge's performance of judicial duties or "detract from the dignity of the office" such conduct would violate MCJC 5, and would be prohibited to the same extent as for full-time judges. See J-3. Furthermore, judges and part-time judges alike should not permit the use of the "the prestige of office to advance personal business interests or those of others" as proscribed by MCJC 2C. See J-3. Finally, it is clearly foreseeable that litigation could arise from conducting the financial affairs of a protected person.
A conservator may also be authorized to "continue or participate in the operation of a business or other enterprise." MCL 700.484(3)(c)l MSA 27.5484. MCJC 5C(1) and (2) state:
"(1) A judge should refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality or judicial office, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.
"(2) Subject to the requirements of C(1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should not serve as director, officer, manager, advisor, or employee of any business. Provided, however, with respect to a judge holding office and serving as an officer, director, manager, advisor, or employee of any business not prohibited heretofore by law or judicial canon, the effective date of the prohibition contained herein shall be the date of expiration of the judge's current judicial term of office."
Special care must be exercised to avoid a violation of the judicial Canons, and therefore, although a part-time judge may serve as a conservator for a protected person, a part-time judge may not act as conservator of a business. See J-3.