Can a full-time probate or juvenile court referee draft wills or trusts for relatives?

Currency note

The Ohio Board of Professional Conduct withdrew this opinion on December 5, 1997, following the amendment of Canon 4(F) (effective May 1, 1997). It is no longer current guidance and is indexed here for historical research only. The opinion was issued in 1988 under Ohio's former Code of Judicial Conduct, which was superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. Verify against the current Ohio Code of Judicial Conduct (including its rules limiting a full-time judge's practice of law) before relying on any specific rule mentioned here.

Plain-English summary

A full-time referee of a probate and juvenile court asked whether he could draft wills or trusts for relatives.

The Board noted that a referee is a judge for purposes of complying with the Code of Judicial Conduct (Compliance Section), and that Canon 5F provides that full-time judges, including those designated as judges in the Compliance Section, should not practice law. It described the issue as clear-cut: a full-time judge, including a referee, should not engage in the private practice of law. Turning to whether drafting wills is practicing law, the Board explained that the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer (EC 3-5), and that preparing wills clearly fits. It added that charging a minimal fee or rendering the services for free would not change the result, citing ABA Informal Op. 86-1522 (1986). The Board concluded that a full-time referee is precluded from practicing law, including preparing wills or trusts for relatives.

Common questions

Q: Is a full-time referee treated as a judge for ethics purposes?

A: Yes. The Board noted that under the Code's Compliance Section a referee is a judge, so the Canon 5F bar on practicing law applies.

Q: Could the referee draft wills for relatives for free?

A: No. The Board concluded that preparing wills is the practice of law and that charging a minimal fee or doing it gratuitously would not change the result under Canon 5F.

Background and rules framework

The opinion applies Ohio's former Code of Judicial Conduct, Canon 5F (full-time judges not practicing law) and its Compliance Section, together with EC 3-5 of the Code of Professional Responsibility on what constitutes the practice of law. Ohio later replaced this framework with the current Ohio Code of Judicial Conduct.

Citations and references

Rules of Judicial Conduct:

• Former Code of Judicial Conduct, Canon 5F and Compliance Section (Ohio)
• Former EC 3-5, Ohio Code of Professional Responsibility (definition of the practice of law)

Other opinions cited:

• ABA Standing Committee on Ethics & Professional Responsibility, Informal Op. 86-1522 (1986): a fee or its absence does not change the bar on a judge practicing law

See also

• Ohio BPC Opinion 1988-034: Campaign Activity by a Retired Judge Not Eligible for Recall
• Ohio BPC Opinion 1989-001: Court Nepotism and a Judge's Spouse as a Court Employee

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-036.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 88-36
Issued December 16, 1988

[Withdrawn by Board on Dec. 5, 1997 due to amended Canon 4(F), eff. May 1, 1997]

SYLLABUS: A full-time judge or referee is precluded from practicing law under Canon 5F of the Code of Judicial Conduct. Ethical Consideration 3-5 states that the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. Preparing wills for relatives is considered engaging in the practice of law.

OPINION: We have before us your request for an advisory opinion on whether you may draft wills and/or trusts for your relatives when you are a full-time referee of a probate/juvenile court.

A referee is a judge for purposes of complying with the Code of Judicial Conduct. Code of Judicial Conduct Compliance Section. Canon 5F states,

[f]ull-time Judges, including those persons designated as Judges in the Compliance section of this Code, should not practice law.

The issue of judges or referees practicing law is clear-cut under the Code of Judicial Conduct. A full-time judge, which includes referees, should not "engage in the private practice" of law. Id.

In your request you ask whether drafting wills is considered practicing law. Defining what constitutes the "practice of law" is difficult. The practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. Code of Professional Responsibility EC 3-5. Clearly, preparing wills fits within the parameters of what is considered practicing law. Charging a minimal fee or even rendering the services gratuitously would not affect the proscription of Canon 5F. See, ABA Standing Committee on Ethics & Professional Responsibility Informal Op. 86-1522 (1986).

In conclusion, it is our opinion and you are so advised that a full-time referee is precluded from practicing law, including preparing wills or trusts for relatives.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.