Can a part-time probate judge's law firm represent a party in a case the judge acted on before recusing himself?

Plain-English summary

In a contested formal probate of a will, the part-time probate judge took several actions: granting two continuances, appointing the petitioner (Lawyer L.) as special administrator by agreement of counsel, and ruling on a petition to transfer the case to another county. The law firm ABC, in which the probate judge was a partner, then appeared for a charitable residuary beneficiary and sought the transfer; the judge denied the transfer and recused himself, after which ABC asked whether its continued representation would violate the Bar Rules.

The Commission concluded it would. It first set aside the simple recusal-conflict objection: the judge's recusal removed the only potential conflict, and possible delay from securing another judge was not reason enough to bar the representation (just as a judge's former associates may appear in other courts). The more serious problem was Rule 3.4(g): "A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity," taken verbatim from former ABA Code DR 9-101(A), with EC 9-3 explaining its purpose of avoiding even the appearance of impropriety. Because of the vicarious disqualification in Rule 3.4(k), the firm could not represent the beneficiary if the judge himself could not. The Commission rejected the argument that the judge had not acted "upon the merits," reasoning that consent of counsel does not determine the question (consent judgments are still on the merits), and that the rule's policy of public confidence in the judiciary calls for a broad construction of "upon the merits," to prevent part-time judges from "feeding" lucrative cases to partners by recusing after early insights. It held that appointing the special administrator (often the initial battleground in a will contest, with important asset-management duties) and denying the contested transfer petition (which affected the parties' expense and delay) were each action "upon the merits." Acceptance of the representation by firm ABC would therefore violate the rule.

Currency note

This opinion was issued in 1987, 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 Treat this page as historical context, not current guidance.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: Can a part-time judge's law firm take a case the judge acted on?

A: The opinion concluded it cannot where the judge acted on the merits; Rule 3.4(g) bars the judge from accepting such private employment, and Rule 3.4(k) imputes that bar to his firm.

Q: Does it matter that the judge acted only with the consent of counsel?

A: No. The opinion concluded that whether action is "upon the merits" cannot turn on whether the judge acted with counsel's consent, since even consent judgments are on the merits.

Q: Were appointing a special administrator and denying a transfer "on the merits"?

A: The opinion concluded both were. Appointing a special administrator is often the initial battleground in a will contest, and the contested transfer ruling affected the parties' expense and delay; a broad construction of "upon the merits" serves the rule's policy.

Q: Did the judge's recusal cure the problem?

A: The opinion concluded recusal removed the ordinary conflict, but it did not save the representation, because Rule 3.4(g) independently bars the firm once the judge has acted on the merits.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.4(g) (no private employment in a matter on whose merits the lawyer acted in a judicial capacity), taken verbatim from ABA Code DR 9-101(A) (with EC 9-3), and Rule 3.4(k) (vicarious disqualification within a firm). The successor standard is ABA Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral), including its imputation provisions. The opinion references 4 M.R.S.A. section 307 (transfer of jurisdiction) and 18-A M.R.S.A. sections 3-615 and 3-616 (special administrators).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.12 (former judge or third-party neutral)
• Maine Bar Rule 3.4(g); Rule 3.4(k); ABA Code DR 9-101(A) and EC 9-3 (source of the rule)

Statutes:

• 4 M.R.S.A. section 307 (transfer of jurisdiction); 18-A M.R.S.A. sections 3-615, 3-616 (special administrators)

See also

• ABA Formal Op. 95-391: Former Judge Using "Judge"
• FL Bar Ethics Op. 61-22: Coroner as Plaintiff's Lawyer

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91413

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: August 5, 1987

Facts

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.[1] 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.

Opinion

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.[2] 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.

Footnotes

[1] 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.

[2] 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.