May a lawyer represent clients before the probate court when the lawyer's partner has been elected Register of Probate?

Plain-English summary

Attorneys A and B practiced together in a professional corporation. Attorney A had acted as guardian or attorney for Department of Human Services clients in Probate Court guardianship proceedings, and had at times been appointed guardian ad litem by the probate judge. Attorney B was then elected Register of the Probate Court. The question was whether Attorney A could continue to practice before the Probate Court in those matters.

The Commission concluded he could. Bar Rule 3.4(g) provides 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), the Commission had held that a firm could not appear before a Probate Judge who was a member of the firm, even on matters like uncontested motions for continuance or appointment of a special administrator, because those constituted rulings on the merits. Here, by contrast, the Commission found that the Register of Probate, unlike the Probate Judge, has no authority to act on the merits; the Commission's review of the statutes disclosed only clerical and ministerial functions. Because the Register cannot act on the merits, Attorney A may continue to represent Department clients in the described proceedings.

The Commission added a caution: it understood that probate judges sometimes consult registers about the merits of pending matters, and it pointed the Register to Bar Rule 3.2(f)(4), which prohibits conduct prejudicial to the administration of justice. The Commission said it would be concerned if the Register were to consult with the Probate Judge about a pending matter involving the Register's partner, and assumed the Register would conduct himself to avoid implicating that rule and creating any appearance of impropriety.

Currency note

This opinion was issued in 1993, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a partner becoming Register of Probate disqualify the lawyer from probate practice?

A: The opinion concluded no. Because the Register performs only clerical and ministerial functions and cannot act on the merits, the partner's role does not disqualify the lawyer from appearing in those proceedings.

Q: How is this different from a partner who is the Probate Judge?

A: The opinion distinguished Opinion No. 80 (1987), which barred a firm from appearing before a Probate Judge who was a member of the firm because the judge's actions, even routine ones, were rulings on the merits under Rule 3.4(g). The Register, by contrast, has no merits authority.

Q: What caution did the Commission give the Register?

A: The opinion pointed the Register to Rule 3.2(f)(4) (conduct prejudicial to the administration of justice) and said it would be concerned if the Register consulted with the Probate Judge about a pending matter involving the Register's partner.

Background and rules framework

The opinion interprets Maine Bar Rule 3.4(g), which bars a lawyer from accepting private employment in a matter on the merits of which the lawyer has acted in a judicial capacity, and Maine Bar Rule 3.2(f)(4), which prohibits conduct prejudicial to the administration of justice. The judicial-capacity restriction corresponds to ABA Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.12 (former judge or adjudicative officer)
• Maine Bar Rule 3.4(g), 3.2(f)(4)

Statutes:

• 18-A M.R.S.A. §§ 5-401 through 5-431 (Probate Court guardianship proceedings)

Other opinions cited:

• Maine Professional Ethics Commission Op. 80 (1987): firm appearing before a Probate Judge who is a firm member

See also

• Maine Ethics Op. 188: Conflict for an Attorney on a Municipal Planning Board
• Maine Ethics Op. 130: Vicarious Disqualification and Special Assistant DAs
• ABA Formal Op. 509: Confidential Government Information and Disqualification

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89833

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: March 26, 1993

Facts

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.

Question

May Attorney A continue to practice before the Probate Court on behalf of such clients in the matters so described?

Opinion

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.