May a circuit judge appoint the probate court’s former special administrator as special master in the same estate cases?

Plain-English summary

The judge presided over estate cases transferred from probate court and considered appointing as special master the person who had been the probate court’s special administrator. The Commission answered no. Under Canon 3B(2), the judge had to select a master who would not be disqualified if serving as judge. The former administrator had personal knowledge of disputed evidentiary facts and prior involvement that reasonably called impartiality into question. The Commission also identified an appearance-of-impropriety problem. It said those disqualifications could not be remitted under Canon 3D.

The judge or staff could contact another potential master about experience, skills, availability, technical ability, conflicts, compensation, and ability to work with the judge. During initial discussions, the judge should give only a general account of the case and proposed duties, without discussing merits, witness credibility, predispositions, off-record explanations, or nonpublic information acquired judicially. The opinion says Canon 3A(4)’s ex parte concern does not apply to that pre-appointment contact, and disclosure of the preliminary discussions is not required.

In practice

For these transferred estate cases, the opinion excludes the former special administrator from appointment as master and describes the permitted scope of interviews with other candidates.

Common questions

Q: Why could the former special administrator not serve as master?

A: That person’s disputed-fact knowledge and prior involvement would disqualify a judge in the same cases; the appointment would also create an appearance of impropriety.

Q: Could the judge interview another candidate about compensation and conflicts?

A: Yes. The Commission includes those topics among permissible preliminary discussions.

Q: Could the judge discuss the merits or nonpublic judicial information?

A: No. The opinion confines the case description to general terms and excludes merits, credibility assessments, predispositions, and nonpublic information acquired in a judicial capacity.

Background and rules framework

The opinion applies Canon 3B(2) to a special master as a court official under a judge’s direction. It uses Canon 3C(1) and 3C(1)(a) for disqualification, Canon 2 for appearance of impropriety, and discusses Canon 3D and pre-appointment contact under Canon 3A(4).

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 2
• Canon 3A(4)
• Canon 3B(2)
• Canon 3C(1)
• Canon 3C(1)(a)
• Canon 3D

Statutes and procedural rules:

• Ala. Code § 43-2-47, special administrator’s powers
• Ala. R. Civ. P. 52 and 53, cited on master appointment

Cases:

• Garmon v. Alabama State Bar, 570 So. 2d 633 (Ala. 1990), master as an arm of the court

Other opinions cited:

• Alabama Advisory Opinions 06-868 and 01-775, disqualification of a proposed master
• Alabama Advisory Opinion 96-616, cited by comparison on appointing a master who would be disqualified

See also

• AL Judicial Ethics Op. 95-563: Personnel Board Appointment
• AL Judicial Ethics Op. 86-256: Judicial Secretary Appointment

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 17-934

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: September 15, 2017 ADVISORY OPINION 17-934
I. CIRCUIT JUDGE’S APPOINTMENT IN ADMINISTRATION-OF-ESTATE CASE OF DISQUALIFIED SPECIAL MASTER, I.E., PROBATE COURT’S SPECIAL ADMINISTRATOR II. JUDGE’S COMMUNICATIONS WITH POTENTIAL SPECIAL MASTER ISSUES I. Under the Alabama Canons of Judicial Ethics, may a circuit judge who is presiding in the administration-of-estate cases removed from the probate court, appoint a special master who was the special administrator appointed by the probate court? Answer: No. II. Is the appointing judge limited by the Canons in his/her initial discussion with a potential special master? Answer: Yes. FACTS The inquiring circuit judge has been assigned multiple cases involving the administration of substantial, complex estates of a deceased husband and wife. When the estates were in the probate court, the probate judge appointed a “special administrator,” pursuant to § 43-2-47, Ala. Code (1975), which provides: (a) The judge of probate may . . . appoint a special administrator, authorizing the collection and preservation by him of the goods of the deceased until letters testamentary or of administration have been duly issued. (b) Every such special administrator has authority to collect the goods and chattels of the estate and debts of the deceased, to give receipts for moneys collected, to satisfy liens and mortgages paid to him and to secure and preserve such goods and chattels . . . ; and for such purposes, he may maintain civil actions as administrator. (c) Such special administrator may also, under the direction of the probate court, sell such goods as are perishable or wasting, after the same have been appraised, upon such notice as the judge of probate may prescribe. (d) Upon the grant of letters testamentary or of administration, the authority of such special administrator ceases, and on demand he must deliver to the rightful executor or administrator all the assets of the deceased . . . and render an account on oath of all his proceedings to the probate court. Probate of the estates has been transferred to the circuit court. The inquiring judge is considering appointing a special master, pursuant to Rule 53, Ala. R. Civ. P., and inquires whether the probate court’s special administrator is a potential candidate under the Canons. ADVISORY OPINION 17-934 Page 2 DISCUSSION I. Canon 3B(2) states that a judge “should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him.” A special master appointed by a judge falls within the purview of this provision. See Rule 52, Ala. R. Civ. P. See also Garmon v. Alabama State Bar, 570 So. 2d 633 (Ala. 1990) (a master acts as an arm of the circuit court). Thus, Canon 3B(2) requires a judge to assure that he/she appoints a master who would not be disqualified if that master were the judge. Advisory Opinions 06-868; 01-775. Cf. Advisory Opinion 96-616. In addition, there is a question under the Canons as to whether a judge may appoint a master who would create an appearance of impropriety if assigned to a particular case. See Advisory Opinions 06-868; 01-775. The “special administrator” appointed by the probate court would be disqualified from serving as a special master in the circuit-court cases because he/she would have personal knowledge of disputed evidentiary facts concerning the proceeding, Canon 3C(1)(a), and because, having been involved in the litigation, his/her “impartiality might reasonably be questioned.” Canon 3C(1). Neither disqualification is remittable under the procedure of Canon 3D. In addition, the judge’s appointment of the “special administrator” as the master would create an appearance of impropriety, which is prohibited by Canon 2. II. If a special master is to be used, it is critical that an appropriate individual be identified to serve. To this end, the appointing judge or the judge’s staff may contact any potential special master to discuss preliminaries, such as necessary experience, skills, and knowledge to handle the matter for reference; willingness to serve; time availability; technical capability; potential disqualification and conflicts; and compensation. In addition, an important factor may be, depending on the role of the special master, the ability of the judge and the special master to work together, including taking into account the master’s legal philosophies. The judge can investigate all of these issues in personal interviews conducted by the judge (and counsel for the parties, in the judge’s discretion), as required prior to selecting the best candidate to serve in a particular case. During these initial communications, the judge should only generally describe the case and its status and the master’s proposed duties—without commenting on the merits of any issue, the judge’s theories of the case, the strategies of the attorneys, the judge’s credibility assessment of witnesses, or the validity and quality of evidence; without indicating any predisposition with respect to any issue; without explaining his/her actions taken in court with statements that are not in the official court record; and without disclosing any non-public information that the judge acquired in his/her judicial capacity. Pre-appointment contact between a potential master and the judge does not give rise to the concerns about ex parte communications; thus, Canon 3A(4) has no application. Moreover, the judge is not required to disclose the preliminary discussions with a potential special master to the parties and/or their attorneys. ADVISORY OPINION 17-934 Page 3 REFERENCES Alabama Canons of Judicial Ethics, Canons 2, 3A(4), 3B(2), 3C(1), 3C(1)(a), 3D. Alabama Advisory Opinions 06-868; 01-775; 96-616.
§ 43-2-47, Ala. Code (1975).
Rule 52, Ala. R. Civ. P.
Garmon v. Alabama State Bar, 570 So. 2d 633 (Ala. 1990).
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This opinion is advisory only and is based on the specific facts and question submitted by the judge who requested the opinion pursuant to Rule 18 of the Rules of Procedure of the Judicial Inquiry Commission. For further information, you may contact the Judicial Inquiry Commission, P. O. Box 303400, Montgomery, Alabama 36130-3400; tel.: (334) 242-4089; fax: (334) 353-4043.