Advisory Opinion No. 95-30

Re: Mark E. Liberati, Esq.

A. QUESTIONS PRESENTED

1) Whether a member of the Jamestown Town Council may represent a client before the Probate Court of Jamestown as Executor of a Will given that the Town Council appoints the judge(s) of the Probate Court.

B. SUMMARY

Mark Liberati is an elected member of the Jamestown Town Council. His private employment is as a practicing lawyer in Jamestown. Among the duties and responsibilities of the Town Council is the appointment of judges to the Probate Court of Jamestown. Mr. Liberati was named as Executor in the Will of a client for whom he had provided representation for a number of years. The Will is to be admitted to probate in the Probate Court of Jamestown. Mr. Liberati advises that, while he does not regularly practice in the Town's Probate Court he believes it would be in the best interests of all concerned if he carries out the intent of his client's Will and served as Executor. He further advises that, with respect to any future issues regarding compensation, reappointmentor other matters involving the Probate Judge before whom he would appear, he would recuse from participation as a member of the Town Council. In light of those representations, we conclude that the Code of Ethics, particularly Regulation 36-14-5008, does not bar Mr. Liberati from serving as Executor of the Will in the Probate Court of Jamestown.

C. DISCUSSION

1. Facts

Mr. Liberati advised the Commission that in his private practice of law he does not appear before the Probate Court of Jamestown, which is where the Will at issue here would be admitted to probate. He further advised, however, that in this instance because of his familiarity with the decedent, her Will and the pending sale of real property, it would be to the advantage of the Estate if he were to allow to appear as the Executor in Probate Court. He acknowledges that as Executor he will request that the Court designate a fee for his services. Finally, he advises that in recognition of the fact that the Town Council exercises appointive and fiscal control over the Probate Court he will recuse from any issues involving the Court during the pendency of the terms of the judges who presently sit on the Court and before whom he would appear in his capacity as Executor.

2. Analysis

Regulation 36-14-5008 of the Code of Ethics provides, inter alia, that no municipal elected official who exercises fiscal or jurisdictional control over any municipal entity, including probate courts, shall act for compensation as an agent or attorney before such entity. Here, the Jamestown Town Council, which appoints judges to the Probate Court of Jamestown and controls its budget, clearly exercises fiscal control over the Court. Therefore, as a general rule a member of the Town Council is barred from appearing before the Court for compensation. While Regulation 5008 specifices certain exceptions to its stated prohibitions, including allowing officials to appear before state courts of public records, it is silent on whether, in appropriate circumstances, this Commission may grant additional exceptions to the general rule and/or whether a municipal Probate Court may be considered a state court of public record for purposes of the Regulation.

We conclude here that, given Mr. Liberati's representations that he will recuse from participating in any matters involving the Probate Court of Jamestown during the pendency of the terms of the judges who presently sit on the Court and before whom he would appear in his capacity as Executor, his representation in the Probate Court as Executor of Ms. Barker's Will does not violate the provisions of Regulation 5008. In reaching this conclusion we take particular note of the time considerations that relate to the probating of the Will at issue and further note that the recusals contemplated by Mr. Liberati will not be so frequent as to implicate Regulation 36-14-5003 of the Code of Ethics, which prohibits public officials from making regular use of notice and recusal provisions of the Code, in effect creating an appearance of impropriety because of the frequency of such actions.

Keywords

Acting as Agent