Advisory Opinion No. 2009-6 Rhode Island Ethics Commission Advisory Opinion No. 2009-6 Re: The Honorable F. Munroe Allen QUESTION PRESENTED The Petitioner, the Town of Smithfield Probate Court Judge, a municipal appointed position, who is also an attorney in private practice, requests an advisory opinion as to whether he may file an Affidavit of Complete Administration with the Smithfield Probate Court. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Town of Smithfield Probate Court Judge, a municipal appointed position, who is also an attorney in private practice, may file an Affidavit of Complete Administration with the Smithfield Probate Court, based upon a finding of hardship, given both the timing of the Petitioner's appointment and nature of his appearance before the Probate Court. The Petitioner advises that he was appointed as the Probate Court Judge for the Town of Smithfield on January 6, 2009. In his private capacity, the Petitioner is an attorney in private practice. He advises that prior to his appointment in January of 2009, he had several matters pending before the Smithfield Probate Court (“Probate Court”) and is now seeking the advice of the Commission as to the appropriate course of action to take in each matter in order to avoid a violation of the Code of Ethics. Subsequent to the submission of his written request for an advisory opinion, the Petitioner represented to Commission staff that he was withdrawing from his legal representation on all of the pending matters before the Probate Court, except for one matter in which he serves as Executor. The Petitioner informs that he has been the private attorney to the Mowry family for the past forty (40) years and that he was appointed Executor to the Estate of Mary E. Mowry (“Estate”) on November 13, 2008. He advises that all bills of the Estate have been paid and the remaining assets have been distributed to a Living Trust and that no assets remain in the Estate. The Petitioner represents that in order to close out the Estate, he must file an Affidavit of Compete Administration (“Affidavit”) with the Probate Court. The Petitioner represents that he does not need to appear before the Probate Court and that the filing is simply a matter of completing and executing the Affidavit and mailing it to the Probate Court. The Petitioner advises that the Affidavit would then be reviewed by the Town Solicitor, who serves as the Probate Court Judge in the event that the sitting Probate Court Judge is unavailable or recuses himself from any matter. The Petitioner further represents that he would recuse from all matters in which he was previously involved when those matters appear before the Probate Court. Finally, the Petitioner advises that it would be unduly burdensome to the Estate to withdraw as Executor, and have the Probate Court appoint another Executor, since the filing of the Affidavit is the last remaining action needed to close out the Estate. Under the Code of Ethics, the Petitioner may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. See R.I. Gen. Laws § 36-14-5(e)(1) and (2). Section 5(e)(4) extends these prohibitions for a period of one (1) year after the Petitioner has officially severed his position with the agency, unless it pertains to a matter of public record in a court of law. See R.I. Gen. Laws § 36-14-5(e)(4). Section 5(e)(1) provides that the Commission may find that a hardship exists, thereby allowing the public official to appear and represent himself before his agency. In considering the question of hardship on a case by case basis, the Commission has utilized a totality of the circumstances analysis, including, but not limited to, the following factors: whether the matter before the agency involves a vested property right; whether the official’s employment interest or property right is pre-existing or recently acquired; or whether the matter involves a significant economic impact. Under this totality of the circumstances analysis, the Commission has found that no single factor is determinative. While section 5(e)(1) expressly provides for a hardship exception, the other provisions of section 5(e) do not. However, notwithstanding that the other provisions are silent with regard to a finding of hardship, the Commission has previously provided for a hardship exception, thereby allowing persons subject to the Code to represent other people, in limited cases. Specifically, the Commission opined that the City of East Providence Deputy Probate Court Judge could serve as Executrix and/or attorney for a recently deceased client, which included appearing before the East Providence Probate Court, based upon a finding of hardship to the heirs of the client, given the timing of her appointment and the nature of her appearance before the Probate Court. See A.O. 99-42. See also A.O. 99-6 (opining that a hardship existed for a recently elected legislator/attorney who had been representing his family in matters before a state agency over which he, as a legislator, had fiscal and/or jurisdictional control); A.O. 95-58 (opining that a hardship existed as to a former state employee representing other people before his former employer, given that he was terminated from employment with the agency after six months and would have to work out of state if the Commission did not find a hardship to exist). It is the opinion of the Commission that the instant matter is also appropriate for a finding of hardship. The Petitioner represents that the family of decedent has been his client for over forty (40) years, that his appointment as Executor to the Estate pre-existed his appointment to the Probate Court, and, that it would be unduly burdensome to the Estate to withdraw as Executor, given that the only remaining action to settle the Estate is to mail the Affidavit to the Probate Court, which will be reviewed by the acting Probate Court Judge. Accordingly, given the specific set of facts and representations described above, the Commission opines that the Petitioner may file an Affidavit of Complete Administration with the Town of Smithfield Probate Court, based upon a finding of hardship, given both the timing of the Petitioner's appointment and the limited nature of his appearance before the Probate Court. Code Citations: 36-14-5(e) Related Advisory Opinions: 99-42 99-6 95-58 Keywords: Probate Hardship