After leaving the bench, may a former county judge represent a later-appointed estate administrator in an appeal over that administrator's appointment, when the judge earlier admitted the will and appointed the first administrator?

Plain-English summary

While a county judge in 1929, the inquirer had denied probate of a will, was reversed on appeal, then admitted the will and appointed an administrator with the will annexed. After he left office, that administrator was removed, a second was appointed and resigned, and a third was appointed. An appeal was taken from the order appointing the third administrator, who then sought to engage the former judge. He asked whether accepting the employment would violate the rules.

The Board concluded it would not. It applied Rule 38, which provided that a lawyer should not act as an advocate in a matter whose merits he had previously acted on in a judicial capacity, and should not, after leaving public office, accept employment in connection with any matter he had investigated or passed upon while in office. The Board reasoned that admitting the will to probate was final and not at issue, the first administrator's appointment was not at issue, and the former judge had neither investigated nor passed upon the merits of the last administrator's appointment. It therefore concluded he would not violate any rule by accepting the employment.

Currency note

This opinion was issued in 1935, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The rule cited here, Rule 38, belongs to that superseded canon-era code and does not map onto the current Oklahoma rules governing former judges and former government lawyers. Subsequent rule amendments and 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 Treat this page as historical context, not current guidance.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: Could a former judge represent a party in the same estate proceeding he had handled on the bench?

A: The opinion concluded he could, as to issues he had not decided. Rule 38 reached only matters the former judge had passed upon judicially or investigated in office, and the last administrator's appointment was not such a matter.

Q: What made the difference under Rule 38?

A: The opinion turned on whether the former judge had acted on the merits of the specific matter. Because the will's admission and the first appointment were final and he had not passed on the last administrator's appointment, the rule did not bar the employment.

Background and rules framework

The opinion applied Rule 38 of the then-current Oklahoma Rules of Professional Conduct, drawn from the ABA Canons of Professional Ethics, which barred a lawyer from advocating in a matter whose merits he had acted on judicially, and barred a former public officer from later employment in any matter he had investigated or passed upon while in office. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 38 (1929 Oklahoma Rules of Professional Conduct): a lawyer should not advocate in a matter he acted on judicially, nor, after public office, accept employment in a matter he investigated or passed upon while in office.

See also

• Okla. Bar Ethics Op. 27: Former judge or official representing a prior matter
• Okla. Bar Ethics Op. 37: Ex-county attorney and a tax-ferret appeal
• Okla. Bar Ethics Op. 42: Consent does not cure the former-government-lawyer bar

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-100/

Original opinion text

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

December 26, 1935

1. Attorneys – Unprofessional Employment – Ex-Judges.

A county judge admitted a will to probate and thereupon appointed an administrator with the will annexed. After the retirement of the judge from office the administrator was removed, another administrator was appointed who resigned, whereupon another administrator was appointed. From the order of appointment of the last administrator an appeal has been taken. Held, that the ex-county judge may properly accept employment from the last appointed administrator to sustain his appointment.

Opinion

The Board is in receipt of the following request for an advisory opinion:

"In 1929 I was county judge. There was filed in my court a petition to probate a will, which I denied. An appeal was taken from the order as a result of which, it was ordered that the will be admitted to probate and I appointed an administrator with the will annexed and approved his bond.

After I retired from office, the administrator was removed. Another was appointed and he resigned, whereupon still another administrator was appointed.

I knew nothing about these proceedings until the last appointed administrator sought to engage my services, an appeal having been taken from the order of his appointment.

Under such circumstances, would it be in violation of any rule of professional conduct of the State Bar, were I to accept employment from the aforesaid administrator?"

In response:

Rule 38 of the Rules of Professional Conduct provides:

"A lawyer should not accept employment as an advocate in any matter upon which the merits of which he has previously acted in a judicial capacity.

A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ."

The admitting of the will to probate is a finality and is not now an issue. The appointment of the first administrator is not now an issue. The member of the bar concerned did not investigate, nor pass upon the merits of, the appointment of the last administrator.

It is the opinion of the Board, therefore, that the inquiring member of the State Bar would not violate any rule of professional conduct were he to accept employment from the person now assuming to act as the administrator of the estate.