Opinion #80. Representation by Probate Judge's Law Firm on a Matter upon Which He Has Acted in a Judicial Capacity
Issued by the Professional Ethics Commission
Date Issued: August 5, 1987
Lawyer L. filed a petition for formal probate of X’s will requesting that he be appointed as personal representative as set forth in the will. Notice of the petition was sent to the decedent’s daughter and to a charity which was a residuary beneficiary under the will.
An attorney filed an appearance on behalf of the decedent’s daughter and an answer contesting the allowance of X’s will. Attorney L. requested that he be named as special administrator. A written request for a continuance of the hearing on the allowance of the will filed on behalf of X’s daughter was granted by the Probate Judge with the consent of Attorney L. By agreement between Attorney L. and counsel for X’s daughter, the Probate Judge appointed Attorney L. as special administrator. Subsequently the Probate Judge granted another motion for a continuance of the hearing on the allowance of the will which had been requested by the daughter and was not objected to by Attorney L.
Prior to the hearing on allowance of the will, law firm ABC, in which the probate judge is a partner, entered an appearance on behalf of the charitable beneficiary, and requested that further probate proceedings be transferred to another county pursuant to 4 M.R.S.A. § 307. The petition for transfer of jurisdiction was objected to by both Attorney L. and the decedent’s daughter. The Probate Judge responded by denying the petition and recusing himself from participating further in the proceedings concerning X’s estate. Law firm ABC has now requested the Ethics Commission to render an opinion as to whether its representation of the charitable beneficiary would violate the Bar Rules.
Lawyer L. contends that a conflict of interest was created when law firm ABC accepted employment on behalf of the charitable beneficiary. However, the recusal of the Probate Judge appears to have removed the only potential conflict between the interests of ABC and the other participants in the litigation. The fact that some delay may result from the necessity of securing another judge is not a sufficient reason to prohibit the representation. Were it otherwise, no former partner or associate of a Superior Court Judge could ever accept a case in the Superior Court. Since presiding judges customarily decline to sit on cases in which their former law associates are involved and since the judges are on circuit, it could never be known in advance whether the case would come up on a trial list at a term when the judge in question was presiding thus necessitating a continuance. The only distinction presented by the case of a probate judge is that the members of his law firm know in advance that a recusal will be necessary if they appear in his court whereas, at the Superior Court level, the possibility is merely speculative since the judges sit at more than one location.
A more serious objection to the representation is that it violates Rule 3.4 (g). That section states that:
A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.
Because of the vicarious disqualifications imposed by Rule 3.4(k), law firm ABC in which the probate judge is a partner could not represent the charitable beneficiary if the judge himself could not ethically do so.
Law firm ABC suggests that the probate judge did not act “upon the merits” within the meaning of the rule since his judicial activity was limited to granting two uncontested motions for continuance, appointing Lawyer L. as special administrator of the estate, and ruling on ABC’s petition that the case be transferred to another jurisdiction. The Commission has concluded, however, that a determination of whether the “merits” of a matter are affected by judicial action cannot be resolved on the basis of whether the judge acted with consent of counsel. After all, judgments for some or all of the relief prayed for in the complaint are sometimes entered “by consent.” Yet it could not be seriously contended that the judicial action in such cases was not “on the merits.”
Bar Rule 3.4(g) prohibiting representation by an attorney in a matter in which he had previously acted in a judicial capacity is taken verbatim from DR 9‑101(A) of the former ABA Code of Professional Responsibility. Ethical consideration 9‑3 states that an important purpose of the rule is to avoid the appearance of impropriety in such matters even if none exists.
In order to accomplish the policy of maintaining public confidence in the judiciary embodied in Rule 3.4(g), the Commission believes that a broad construction of the term “upon the merits” should be adopted. Any other view would increase the risk that part‑time probate judges were “feeding” cases to their law partners by recusing themselves after it appeared in the early stages of the litigation that the case would be lucrative. Such a construction of the rule would also tend to discourage judges from recusing themselves to make way for participation by their law firms in cases where they had gained insights during the preliminary stages of the litigation which might prove valuable if communicated to a law partner who had agreed to represent one of the parties.
In the present case, the probate judge appointed Lawyer L. as special administrator of the estate. Although the making of such an appointment might seem relatively innocuous, the uniform laws comment to 18‑A M.R.S.A. § 3‑615 suggests that the appointment of a special administrator is sometimes the initial battleground in an incipient will contest. A special administrator also has important duties regarding the collection and management of the assets of the estate. See 18‑A M.R.S.A. § 3‑616. The Commission is of the opinion that the appointment of the special administrator in this case constituted action “upon the merits” for purposes of Rule 3.4(g).
The probate judge was also presented with a petition to transfer jurisdiction of the matter to another county. The petition was opposed by Lawyer L. and an attorney who represented another party interested in the estate. Depending on the outcome, the unsuccessful attorneys and their clients could have been subjected to substantial expense and delay in litigating the case in a more distant jurisdiction. The burden of such additional expense could weaken the resolve of a party who was in a marginal financial position. The Commission therefore concludes that the ruling of the probate court denying the petition to transfer the case to another jurisdiction was also “upon the merits” within the meaning of Rule 3.4(g). It follows that acceptance of the representation by law firm ABC would violate the rule.
 The Commission assumes that the facts are as stated in the request. Its opinion might be different if the facts were other than as represented by the inquiring attorneys or if additional relevant facts were shown to exist of which the Commission is presently unaware.
 The Commission expresses no opinion as to whether there are any circumstances in which the granting of an uncontested motion for a continuance could constitute action “upon the merits” of the case.