Advisory Opinion No. 2009-35 Rhode Island Ethics Commission Advisory Opinion No. 2009-35 Re: Judge Steven J. Hart QUESTION PRESENTED The Petitioner, the Probate Judge of the Town of Coventry Probate Court, a municipal appointed position, requests an advisory opinion concerning whether he may, in his private capacity as an attorney, represent individuals and estates before the Coventry Probate Court. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Probate Judge of the Town of Coventry Probate Court, is prohibited from representing individuals and estates before the Coventry Probate Court. The Petitioner states that he was recently appointed to be the Probate Judge for the Town of Coventry Probate Court ("the Probate Court"). In his private capacity the Petitioner is an attorney, and he states that, at the time of his appointment as Probate Judge, he had several cases that were pending before the Probate Court. The Petitioner notes that these cases have been continued pending his receipt of the instant advisory opinion. The Petitioner states that the Town of Coventry Charter directs the Town Solicitor to perform the duties of the Probate Judge in the "absence, disability or disqualification" of the sitting Probate Judge. Given this provision, the Petitioner asks whether it is permissible under the Code of Ethics for him to represent individuals and estates before the Coventry Probate Court of which he normally serves as the Probate Judge, provided that he recuses from judging his own cases which will be heard and decided by the Town Solicitor. Section 5(e) of the Code of Ethics provides that a public official may not represent himself or any other person, or act as an expert witness, before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1), (2) and (3). The Ethics Commission has frequently opined that section 5(e) prohibits a sitting probate court judge from representing clients before his or her own probate court. See A.O. 2009-6 (recently appointed Probate Judge for the Town of Smithfield is prohibited by section 5(e) from representing a client before the Smithfield Probate Court, but a ministerial appearance to file an Affidavit of Complete Administration was permitted to prevent hardship to a particular client); A.O. 2008-68 (Glocester Probate Court Judge may not appear or represent any other person before the Probate Court); A.O. 99-42 (section 5(e) generally prohibits newly appointed City of East Providence Deputy Probate Court Judge from representing client before East Providence Probate Court, but unique circumstances justify hardship exception for particular representation); A.O. 95-91 (Alternate Acting Probate Judge for the Providence Probate Court may not represent private clients before the Providence Probate Court, given the Code's prohibition against representing anyone before a municipal agency of which a public official is a member or by which he or she is employed). See also In re: Patrick J. Sullivan, Complaint No. 2008-8 (Coventry Town Solicitor who, pursuant to Town Charter, regularly served as Acting Judge of the Coventry Probate Court, violated section 5(e) of the Code of Ethics by representing private clients before the Probate Court). Compare A.O. 2005-29 (Town of Glocester Probate Court Judge may represent private clients before the Glocester Zoning Board provided that the case is not related to a matter in which he is involved as Probate Court Judge or over which the Probate Court has jurisdiction). Based on the clear language of section 5(e) and our longstanding interpretation thereof, it is the opinion of the Rhode Island Ethics Commission that the Petitioner is prohibited from representing clients before the Probate Court for the Town of Coventry. If the Petitioner believes that this prohibition will result in a substantial hardship to a particular client, he is invited to return to the Ethics Commission to request further guidance as to whether the particular circumstances justify application of section 5(e)'s hardship exception. Code Citations: 36-14-5(e) Related Complaints and Advisory Opinions: In re Patrick J. Sullivan, Complaint No. 2008-8 A.O. 2009-6 A.O. 2008-68 A.O. 2005-29 A.O. 99-42 A.O. 95-91 Keywords: Revolving Door Hardship Probate