Can an Ohio judge who serves as executor or administrator of a family member's estate also prepare and file the probate documents?

Plain-English summary

The Board addressed whether a judge who is allowed under Canon 5D to serve as administrator or executor for the estate of a family member may also prepare and file the estate's probate documents. The Board began with Canon 5D, which gives a judge limited permission to act as a fiduciary for a family member's estate if doing so does not interfere with judicial duties, citing its own Opinion 91-21 (1991), which allowed a judge to serve as executor for a close friend with whom the judge maintained a close familial relationship.

On the practice of law, the Board found the Code is not permissive. Canon 5F provided that full-time judges should not practice law, and Ohio Revised Code Section 4705.01 separately prohibited any judge of a court of record from engaging in the practice of law during the term of office. The Board acknowledged that a fiduciary has discretion whether to appoint an attorney for an estate and that any person may represent his or her own interest, but it concluded that preparing and filing probate documents constitutes the practice of law.

Applying the unequivocal prohibition on the practice of law by judges in Canon 5F and Section 4705.01, the Board concluded that a judge serving as administrator or executor for a family member's estate should not prepare and file the probate documents.

Currency note

This opinion issued in 1992 under Ohio's former Code of Judicial Conduct (superseded by the Ohio Code of Judicial Conduct effective March 1, 2009). The Board's status list also flags it as not current because of subsequent rule amendments to Canons 1 through 6 of the Ohio Code of Judicial Conduct, effective May 1, 1997. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule mentioned here.

Common questions

Q: Can an Ohio judge serve as executor of a family member's estate at all?

A: Under this opinion, yes within limits. The Board explained that Canon 5D gave a judge limited permission to serve as a fiduciary for a family member's estate if the service would not interfere with the proper performance of judicial duties.

Q: Why can't the judge prepare the probate paperwork personally?

A: The opinion concluded that preparing and filing probate documents is the practice of law, and Canon 5F together with Ohio Revised Code Section 4705.01 prohibited judges from practicing law during their term of office.

Q: Does it matter that a fiduciary can choose whether to hire a lawyer?

A: The opinion acknowledged that a fiduciary has discretion whether to appoint an attorney and that a person may represent his or her own interest, but it concluded the practice-of-law prohibition still barred the judge from preparing and filing the documents.

Background and rules framework

The opinion interprets the former Code of Judicial Conduct Canon 5D (limited permission for a judge to serve as a family fiduciary) and Canon 5F (full-time judges should not practice law), read together with Ohio Revised Code Section 4705.01 (statutory bar on the practice of law by judges).

Citations and references

Rules of Judicial Conduct (Ohio, former):

• Canon 5D, service as a fiduciary for a family member's estate
• Canon 5F, full-time judges should not practice law

Statutes:

• Ohio Rev. Code Ann. Section 4705.01 (Baldwin 1991), bar on the practice of law by judges
• Ohio Rev. Code Ann. Section 2109.03 (Baldwin 1987), a person may represent his or her own interest in an estate matter

Other opinions cited:

• Ohio Bd. of Comm'rs on Grievances and Discipline, Op. 91-21 (1991): judge as executor for a close friend
• Pennsylvania Bar Ass'n, Op. 89-20: a judge may not represent a relative in processing a small estate

See also

• Ohio BPC Op. 1991-021: Judge Serving as Executor of a Close Friend's Estate
• Ohio BPC Op. 1989-014: Lawyer Named Executor in a Will
• Ohio BPC Op. 1987-029: County Court Judges Practicing Law
• Ohio BPC Op. 1991-025: Full-Time Judge Prosecuting Patent Applications

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-92-005.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 92-5
Issued February 14, 1992

[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]

[Not Current-subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997]

SYLLABUS: A judge serving as administrator or executor for the estate of a family member should not prepare and file the probate documents.

OPINION: The question presented is whether a judge serving as administrator or executor for the estate of a family member may also prepare and file the probate documents.

Under Canon 5D of the Code of Judicial Conduct a judge is given limited permission to serve as a fiduciary. Canon 5D is set forth below.

A judge should not serve as the executor, administrator, trustee, guardian, or other fiduciary, except for the estate, trust, or person of a member of his [her] family, and then only if such service will not interfere with the proper performance of his [her] judicial duties. 'Member of his [her] family' includes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. As a family fiduciary a judge is subject to the following restrictions:

(1) He [she] should not serve if it is likely that as a fiduciary he [she] will be engaged in proceedings that would ordinarily come before him [her], or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which he [she] serves or one under its appellate jurisdiction.

(2) While acting as a fiduciary a judge is subject to the same restrictions on financial activities that apply to him [her] in his [her] personal capacity.

Thus, Canon 5D grants a judge limited permission to serve as an executor or administrator for the estate of a "member of his [her] family" if such service will not interfere with the proper performance of judicial duties. See Bd. of Comm'rs on Grievances and Discipline, Ohio Sup.Ct, Op. 91-21 (1991) (allowing a judge to serve as executor of the estate of a close friend with whom the judge maintained a "close familial relationship").

As to the practice of law by judges, the Code is not permissive. Under Canon 5F "[f]ull-time Judges, including those persons designated as Judges in the Compliance section of this Code, should not practice law." There is also a statutory prohibition on the practice of law by judges.

No judge of any court of record in this state shall engage in the practice of law during his term of office, either by appearing in court, by acting as advisory or consulting counsel for attorneys or others, by accepting employment or acting as an attorney, solicitor, collector, or legal advisor for any bank, corporation, or loan or trust company, or by otherwise engaging in the practice of law in this state, in or out of the courts, except as provided [for part-time judges] in section 1901.11 of the Revised Code.

Ohio Rev. Code Ann. §4705.01 (Baldwin 1991).

Based on Canon 5F, one state has advised that a judge may not represent a relative in processing a small estate since Canon 5F prohibits a judge from practicing law. Pennsylvania Bar Ass'n, Op. 89-20 (undated). However, the Board found no opinions addressing the precise issue of whether a judge who is permitted by the Code to serve as executor or administrator could also prepare and file the probate documents.

The Board is aware that a fiduciary of an estate has discretion as to whether or not to appoint an attorney for an estate and that any person may represent his or her own interest in any estate, matter, action, or proceeding. See Ohio Rev. Code Ann. § 2109.03 (Baldwin 1987). Even so, the preparation and filing of probate documents are activities which constitute the practice of law. In conclusion, based upon the unequivocal prohibition on the practice of law by judges found within Canon 5F of the Code of Judicial Conduct and Section 4705.01 of the Ohio Revised Code, this Board's opinion is that a judge serving as administrator or executor for the estate of a family member should not prepare and file the probate documents.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Code of Professional Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.