Advisory Opinion No. 2009-41 Rhode Island Ethics Commission Advisory Opinion No. 2009-41 Re: Judge Steven J. Hart (Ryan Estate) QUESTION PRESENTED The Petitioner, the recently appointed Town of Coventry Probate Court Judge, a municipal appointed position, who is also an attorney in private practice, requests an advisory opinion as to whether, in order to avoid a hardship to a preexisting client, he may file an Affidavit of Complete Administration with the Probate Court in order to close an estate. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the recently appointed Town of Coventry Probate Court Judge, a municipal appointed position, who is also an attorney in private practice, may file an Affidavit of Complete Administration with the Probate Court in order to close an estate, given both the timing of the Petitioner's appointment and the nature of his representation before the Probate Court. The Petitioner advises that he was recently appointed as the Probate Court Judge for the Town of Coventry. In his private capacity, the Petitioner is an attorney in private practice. He advises that prior to his appointment he had several matters pending before the Coventry Probate Court (“Probate Court”) and is now seeking the advice of the Commission as to the appropriate course of action to take in a particular matter, Ernest J. Ryan, Jr., Estate No. 8767, for which he serves as legal counsel to the executor. The Petitioner informs that he began work as legal counsel to the executor of the above estate on or about May 20, 2007. He states that, prior to his appointment as Probate Court Judge, he had substantially completed the administration of the estate and that he is ready to close the estate by filing an Affidavit of Complete Administration. He notes that the decedent's daughter had contested her omission as a beneficiary of the estate, but that the issue has been resolved by the Rhode Island Superior Court, which determined that the decedent had intentionally omitted his daughter from the will. The Petitioner represents that the appeal period has long expired on that decision, that there are no further matters in dispute, and that the two (2) beneficiaries of the estate have each signed releases approving all aspects of the administration. Given these circumstances, the Petitioner contends that it would be a hardship on the estate to require it to obtain alternate legal counsel at this late point in the estate's administration. Accordingly, he asks that the Commission grant him permission to recuse from his duties as Probate Judge and continue his representation before the Probate Court for the purpose of closing out the estate. Under the Code of Ethics, a public official or employee 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) further provides that in cases of hardship, the Ethics Commission may permit such representation provided that the public official: (1) advises the agency in writing of the existence and the nature of his interest in the matter; (2) recuses himself from participation in his agency's consideration or disposition of the matter; and (3) follows any other recommendations that the Ethics Commission may make in order to avoid any appearance of impropriety in the matter. See R.I. Gen. Laws § 36-14-5(e)(1)(i)-(iii). The Commission has previously provided for hardship exceptions in similar, though not identical, fact patterns involving recently appointed Probate Court Judges. For instance, in A.O. 2009-6, the Commission permitted the recently-appointed Smithfield Probate Court Judge to file an Affidavit of Complete Administration with the Probate Court. To not allow such continued representation before the Probate Court would amount to a hardship to the estate, the Commission reasoned, given the Petitioner's long-standing and pre-existing representation of the decedent's family and the limited amount of work remaining in order to close the estate. In another advisory opinion, 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). See, e.g. A.O. 95-30 (Jamestown Town Council member may serve as executor of a will and appear before the Jamestown Probate Court, given his familiarity with the decedent, her will and the circumstances surrounding the pending sale of certain real property). It is the opinion of the Commission that the instant matter is also appropriate for a finding of hardship. The Petitioner states that he represented the estate and had substantially completed its administration prior to his appointment as Probate Judge, that there are no remaining contested matters, and that he is not required to make any further appearances before the court. He asserts that a change in counsel at this late date would prove to be a hardship for the estate. Furthermore, the Petitioner states that he will recuse from acting as Probate Judge as to any matters concerning the estate, and that the Town Solicitor will assume the duties of the Probate Judge pursuant to procedures set forth in the Town Charter. Accordingly, given the specific set of facts and representations described above, the Commission opines that the Petitioner may continue his representation of the estate before the Probate Court by filing an Affidavit of Complete Administration. Notice of recusal must be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-5(e) 36-14-6 Related Advisory Opinions: 2009-6 99-42 99-6 95-58 Keywords: Probate Hardship