Can a lawyer who serves as a court's probate commissioner and occasional judge pro tem represent clients before that same court?

Plain-English summary

The committee was asked whether a County Court Probate Commissioner, who also occasionally presided as Judge Pro Tempore, could represent a client in a routine probate proceeding before the probate division of that same court. It concluded the representation would be improper. (The opinion restated the question as whether the conduct was "improper" and answered that affirmatively; the holding is that the lawyer may not appear.)

The committee started from the Court of Appeals decision in In re Kenton County Bar Ass'n, which held that a lawyer who accepts temporary judicial appointments frequently enough to be identified in some people's minds with the judicial position thereby disqualifies himself from practicing in that court until the impression has been removed, and that the propriety of such conduct depends on the nature and incidence of the appointment. The committee reasoned that the question before it went further than Kenton County, because the lawyer not only sat occasionally as judge pro tem but was also a probate commissioner associated with the court itself.

The committee stated the governing principle: where a lawyer, by the very nature of his appointment, serves in a capacity that tends to associate him in the public mind with presiding over a division of a court, he should not appear representing clients before that division; if he accepts the benefits of the office, he must also accept its limitations. It expressly limited the opinion to representation before the Probate Division of the County Court.

Currency note

This opinion was issued in 1963 under the former Canons of Professional Ethics (in effect in Kentucky from 1946 to 1971) and predates both the 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific point mentioned here.

Common questions

Q: Can a probate commissioner who also sits as judge pro tem represent clients before that court?

A: Under this opinion, no. The committee held the representation improper because the lawyer's offices associated him in the public mind with presiding over the probate division.

Q: What standard did the committee apply?

A: Drawing on In re Kenton County Bar Ass'n, it asked whether the lawyer is identified in the public mind with the judicial position; where the appointment so associates him, he should not appear before that division.

Q: How far did the opinion reach?

A: The committee limited its holding to representation of clients before the Probate Division of the County Court.

Background and rules framework

The opinion applied the principle, drawn from In re Kenton County Bar Ass'n, 314 Ky. 664, 236 S.W.2d 906, that a lawyer who is publicly identified with a judicial position should not practice before that court. The modern analog is Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral), with Kentucky's counterpart at SCR 3.130(1.12), together with the conflict and impartiality principles courts apply to lawyers who hold quasi-judicial office.

Citations and references

Rules of Professional Conduct:

• Canons of Professional Ethics (a lawyer publicly identified with a judicial position should not practice before that court); modern analog Model Rule 1.12

Cases:

• In re Kenton County Bar Ass'n, 314 Ky. 664, 236 S.W.2d 906 (Ky. Ct. App.), frequent temporary judicial service disqualifies a lawyer from practicing in that court

See also

• KBA Ethics Op. E-37: County Attorney Partner Conflicts
• KBA Ethics Op. E-119: Trial Commissioner, Other County
• KBA Ethics Op. E-143: Office-Sharing With a Commissioner

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-016.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-16
Issued: November 1963

Question:

May a County Court Probate Commissioner appear to represent a client in a
routine probate proceeding before the probate division of the County Court
over which he occasionally presides as Judge Pro Tempore?

Answer:

No.
OPINION

Is it improper for a County Court Probate Commissioner to appear representing a
client in a routine probate proceeding, before the Probate Division of the County Court
over which he occasionally presides as Judge Pro Tempore?
This question was considered by the Court of Appeals in In re Kenton County Bar
Assn, 314 Ky. 664, 236 S.W.2d 906 at page 909.
In answer to the question, “Is it improper for a lawyer to practice in a Court over
which he occasionally presided as a Judge Pro Tempore” the opinion approved by the
Court stated “However, if a lawyer accepts such temporary appointments frequently so
that he may be identified in the minds of some people with the judicial position, he
thereby disqualifies himself for further practice in that Court until that impression has
been removed.”
The question now submitted for answer involves more than the Kenton County Bar
case. Here a new element is presented in that the lawyer not only serves occasionally as
Judge Pro Tempore, but is also a County Court Probate Commissioner associated with the
Court itself. As the opinion in the Kenton County Bar case stated, “. . . the propriety of
such conduct depends on the nature and incidence of appointment.”
Where any lawyer by the very nature of his appointment serves in a capacity which
tends to associate him in the public mind as presiding over a Division of a Court, then he
should not appear representing clients before that Division of the Court. If he accepts the
benefits of the office, then he must also accept the limitations that go with the office.
It is the opinion of the Committee that the question must be answered in the
affirmative and that such representation would be improper. The Committee considers that

this opinion is applicable only to the representation of clients before the Probate Division of
the County Court.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the
Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530
(or its predecessor rule). The Rule provides that formal opinions are advisory only.