Opinion #131. Representing Clients in Probate Court Where Partner is Register of Probate
Issued by the Professional Ethics Commission
Date Issued: March 26, 1993
Attorneys A and B practice law together in a professional corporation. At the request of the Department of Human Services Attorney A has in the past acted as a guardian or attorney for “clients” of the Department in proceedings before the Probate Court under Title 18‑A § § 5‑401 through 5‑431. From time to time Attorney A has been appointed guardian ad litem by the probate judge in such proceedings.
Attorney B has now been elected Register of the Probate Court.
May Attorney A continue to practice before the Probate Court on behalf of such clients in the matters so described?
Bar Rule 3.4(g) states that: “a lawyer shall not accept private employment in a matter upon the merits of which the lawyer has acted in a judicial capacity.” In Opinion No. 80 (1987) we had occasion to consider the application of this rule to a law firm appearing before a Probate Judge who was a member of the firm. In that opinion we concluded that the law firm could not appear before the Judge, even on matters such as uncontested motions for continuance, the appointment of a lawyer as a special administrator of an estate, or petitions for transfer to another jurisdiction, since such matters constituted rulings “upon the merits in the matter.”
In this case, however, we are satisfied that the Register of Probate, unlike the Probate Judge, has no authority to act “upon the merits” on any of the matters set forth in the factual statement. Our review of the statutes does not disclose any power in the Register of Probate to perform any function other than clerical and ministerial functions in such proceedings. Since the Register cannot act on the merits on such matters, it is our opinion that Attorney A may continue to represent Department clients in the above described proceedings before the Probate Court.
The Commission understands that on occasion some Probate Judges may consult with Registers of Probate regarding the merits of pending matters. The Register of Probate should be aware of Bar Rule 3.2(f)(4) which prohibits conduct “prejudicial to the administration of justice.” In light of that Rule, the Commission would be concerned if the Register were to “consult” with the Probate Judge about a pending matter involving the Register’s partner. We assume, however, that the Register will comport himself to avoid implicating Rule 3.2(f)(4) and creating any appearance of impropriety.