Advisory Opinion No. 2001-74

Re: Ms. Ellen O’Hara


The petitioner, a Cranston City Councilor, a municipal elected position, requests an advisory opinion as to whether she may appear before a Cranston Probate Court judge on behalf of a client in the course of her private practice as a clinical social worker.


It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the petitioner, a Cranston City Councilor, a municipal elected position, from appearing before a Cranston Probate Court judge on behalf of a client in the course of her private practice as a clinical social worker.

The petitioner states that in her private social work practice she works with an elderly client who resides at an assisted living center. A conservator manages the client’s estate under the Cranston Probate Court’s review. The petitioner represents that her client has raised concerns regarding the conservator’s management of her estate and wishes to petition the Cranston Probate Court for a substitution of conservator. She indicates that her client has requested her assistance before the Cranston Probate Court in filing and advocating for appointment of a substitute conservator. Finally, she advises that the current conservator has engaged counsel to contest any possible allegations of fiduciary misconduct. As an elected member of the Cranston City Council, the petitioner is involved in the appointment of the Probate Court judge who would hear the Petition for Substitute Conservator.

Commission Regulation 5008(b) prohibits, among other things, a municipal elected official having fiscal or jurisdictional control over a municipal agency, board, commission or governmental entity from acting as a compensated agent before such governmental entity for any person, in a matter in which the municipality has an interest or is a party. Here, the petitioner’s advocacy on behalf of a client before the Cranston Probate Court would not implicate the prohibitions set forth in Regulation 5008(b) given that the City of Cranston is neither a party to the proceedings nor has it an interest in same. The relevant parties are the petitioner’s private client, the client’s current conservator and, perhaps, certain interested family members. Based upon these facts, Regulation 5008 does not prohibit the petitioner from acting as an agent for her social work client before the Cranston Probate Court.

While the Commission concludes that Regulation 5008 does not bar the petitioner’s representation of a private client before the Probate Court, it has opined to the contrary in prior advisory opinions presenting substantially similar facts. E.g. A.O. 97-40 (holding that Regulation 5008 prohibited an attorney member of the Cranston City Council from appearing before a Cranston Probate judge whom he had appointed as a Council member, given the Council’s exercise of fiscal and jurisdictional control over the Probate Court); A.O. 96-57 (concluding that Regulation 5008 prohibited a Westerly Town Councilor from acting for compensation before any board, agency or court over which the Council exercised fiscal or jurisdictional control). Compare A.O. 95-30, (finding that “as a general rule a member of the Town Council is barred from appearing before the [Probate] Court for compensation[,]” but opining that Regulation 5008 would not prohibit a Councilor from appearing in Probate Court as Executor of a client’s will given time constraints of a pending sale of the decedent’s real property and where the Councilor agreed to recuse from participating in any Probate Court issues during the remainder of the present judges’ terms).

In reviewing its application of Regulation 5008 in these prior opinions, the Commission notes that in no instance was there an analysis of whether “the municipality has an interest or is a party” to the Probate Court proceedings. This is significant since the municipality’s status as an interested party is an essential element to the prohibitions contained in Regulation 5008(b). While applying the “interested party” analysis to such prior opinions might lead the Commission to reach a different conclusion under 5008(b), the Commission nonetheless finds that a city councilor’s appearance before that municipality’s probate court remains prohibited under another section of the Code of Ethics.

Section 36-15-5(e)(2) of the Code prohibits any person subject to the Code from representing any other person before any state or municipal agency of which he or she is a member or by which he or she is employed, and such prohibition extends to one year after he or she has officially severed his or her position. The Commission previously has indicated that for the purposes of applying § 36-15-5(e), “an individual appearing before a board, the members of which he or she appoints, is analogous to appearing before one’s own board.” A.O. 2001-29. See also A.O. 89-50; A.O. 89-51 (opining that an appearance of impropriety is created when a Newport City Councilor makes appearances as an attorney before the Newport Probate Court). Here, in her capacity as a City Councilor, the petitioner is responsible for appointing the Probate Court judge before whom she would appear. Accordingly, the Commission finds that § 36-14-5(e)(2) prohibits her from advocating on behalf of her private client before the Cranston Probate Court.

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