Advisory Opinion No. 2015-3 Rhode Island Ethics Commission Advisory Opinion No. 2015-3 Approved: January 13, 2015 Re: Dean G. Robinson, Esq. QUESTION PRESENTED: The Petitioner, the recently appointed Deputy Probate Judge for the City of East Providence, a municipal appointed position, who is also an attorney in private practice, requests an advisory opinion regarding whether, in order to avoid a hardship to preexisting clients, he may file Affidavits of Complete Administration with the East Providence Probate Court to close two estates. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the recently appointed Deputy Probate Judge for the City of East Providence, a municipal appointed position, who is also an attorney in private practice, may file Affidavits of Complete Administration with the East Providence Probate Court in order to close two estates, given both the timing of the Petitioner’s appointment to the Probate Court and the nature of his representation before that Court. The Petitioner was appointed by the East Providence City Council to serve as Deputy Probate Judge for the East Providence Probate Court (“Probate Court”) on December 1, 2014. He represents that the Deputy Probate Judge sits in instances where the Probate Judge is absent, sick or has a conflict. He states that, in his private capacity, he is an attorney. He informs that, prior to his appointment, he had been representing a few estates before the Probate Court. Cognizant of the Code of Ethics’ prohibition on appearing before his own court, the Petitioner has transferred any ongoing East Providence probate estate matters to another attorney. He states that he will recuse from any matters in which he was previously involved, and those will be overseen by the Probate Judge. However, he states that his work on two estates is substantially complete and he requests a hardship exception to permit him to file an Affidavit of Complete Administration in each case. The Petitioner states that he has worked on the William Sanford Estate, No. 17038, since the spring of 2011, and the Bridget Perry Estate, No. 17883, since September 2014. He represents that both estates are ready to be closed out by filing an Affidavit of Complete Administration in each case with the Probate Court Clerk.[1] He informs that no objections have been filed in either estate, and that it would be a hardship to his clients if they were required to obtain alternate legal counsel at this late point in each estate’s administration. He represents that he will not have to appear before the Probate Court. He informs that once the Affidavit of Complete Administration is processed by the Probate Court Clerk, each estate will be closed. Section 5(e) of the Code of Ethics strictly prohibits public officials and employees from representing themselves, or another person as their attorney, before a state or municipal agency of which they are a member or by which they are employed. R.I. Gen. Laws § 36-14-5(e); Commission Regulation 36-14-5016(b)(1). Section 5(e)’s prohibitions continue while the official remains in office and for a period of one-year thereafter. In contrast to most other Code of Ethics provisions, recusing from participating in his role as Probate Judge is insufficient for the Petitioner to avoid section 5(e) conflicts, absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists. The Commission has previously considered nearly identical fact patterns and has granted hardship exceptions to recently appointed probate court judges in order to file Affidavits of Complete Administration with the probate court of which they were a member. In each case, the Commission found that it would be a hardship to the estate if the petitioner was required to withdraw, given the petitioner’s prior representation of the estate and the limited amount of work remaining in order to close the estate. See A.O. 2009-41, A.O. 2009-40 & A.O. 2009-38 (issuing three advisory opinions to the recently appointed Coventry Probate Court Judge, one for each estate, and permitting him to file an Affidavit of Complete Administration to close out estates that he had represented prior to his appointment, based upon a finding of hardship to the estates); A.O. 2009-6 (granting a hardship exception to the recently appointed Smithfield Probate Court Judge and permitting him to file an Affidavit of Complete Administration for an estate he had been working on for a year, given that the work was nearly finished, he would not appear before the probate court, and it would be a hardship to the estate if he was required to withdraw at that time). In the instant matter, consistent with prior advisory opinions, the Petitioner, a recently appointed Deputy Probate Judge, seeks to close out two estates by filing an Affidavit of Complete Administration in each case with the Probate Court of which he is a member. Given that, at the time of his appointment, his work for the estates was substantially complete, we find that it would be a hardship to both estates if they were required to find alternate legal counsel. Furthermore, no objections have been filed in either estate, and the filing of the Affidavit will not require the Petitioner to appear before the Probate Court. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner may file an Affidavit of Complete Administration to close out the above named estates, based upon a finding of hardship, given both the timing of the Petitioner’s appointment to the Probate Court and the limited nature of his representation before that Court. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(e) Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2009-41 A.O. 2009-40 A.O. 2009-38 A.O. 2009-6 G.C.A. 2009-4 Keywords: Hardship Exception Private Employment Probate [1] An Affidavit of Complete Administration generally provides that all administration charges and claims filed have been adjusted and settled; that all estate and inheritance taxes have been satisfied; that the funeral bill has been paid; that the personal estate has been completely distributed; and that there are no assets remaining in the Executor/Administrator’s hands. http://sos.ri.gov/documents/probate/PC7.3.pdf