Opinion No. 97-9

May 7, 1997

TOPIC: Judge acting as trustee of charitable inter vivos trust.

DIGEST: A judge may act as trustee of a charitable trust set up to disburse the income of the trust to charities in the settlor's name, but may not receive compensation.

REFERENCES: Illinois Supreme Court Rules 65B, 65D and 66; Illinois Judicial Ethics Opinion Nos. 93-5, 97-5 and 97-10.

FACTS

Before becoming a judge, the judge set up an inter vivos trust to disburse the income from the funds of a client's trust to charities in memory of the unrelated client and at the end of 15 years to disburse the remainder of the trust to a college for an endowed scholarship. The client named the lawyer (now a judge) as trustee of the trust and he or she has been acting as trustee for a few years. The trust would permit appropriate fees.

QUESTIONS

1. Now that the lawyer has become a judge, may he or she continue to act as trustee?

2. Could the judge take a fee for managing the trust assets?

OPINIONS

Question 1

Yes. Rule 65B states that "a judge may participate in civic and charitable activities that do not reflect adversely on his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee or nonlegal advisor of an educational, religious, charitable, fraternal or civic organization not conducted for the economic or political advantage of its members..." (emphasis added)

Although it is not applicable to this case, Rule 65D 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 family..." (emphasis added). The limitation of a judge acting as a trustee in Rule 65B is that generally a judge cannot be a trustee except for an educational, religious, charitable, fraternal or civic organization not conducted for the economic or political advantage of its members. (See IJEC Opinion Nos. 93-5, 97-5 and 97-10).

Rule 65D grants judges more leeway. The trusteeship is permissible even if it is not a charitable, etc., trust if it is a trust for a member of his family. This type of a trust would regularly arise in an estate plan where all the residual assets of the estate would be poured into a trust that would manage the assets and give the income to the surviving spouse and then distribute the remainder to the children. That trust certainly would not qualify as a charitable trust that would be permitted under 65B but it would qualify under Rule 65D as trust for a member of his or her family.

OPINIONS

Question 2

Although this trusteeship is permissible under Rule 65B, compensation is prohibited under Rule 66 which states: "A judge may not receive compensation for the law-related and extrajudicial activities permitted by this Code..."