Advisory Opinion No. 99-42

Re: Christine J. Engustian, Esq.

QUESTION PRESENTED

The petitioner, the City of East Providence Deputy Probate Court Judge, a municipal appointed position, requests an advisory opinion as to whether she may serve as Executrix and/or attorney for a recently deceased client including filing the client’s will with the East Providence Probate Court.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the City of East Providence Deputy Probate Court Judge, a municipal appointed position, may serve as Executrix and/or attorney for a recently deceased client, which could include appearing in the East Providence Probate Court, based upon a finding of hardship to the heirs of the client, given both the timing of the petitioner's appointment and nature of her appearance before the Probate Court.

The Code of Ethics provides that the petitioner should not represent herself or any other person before any state or municipal agency of which she is a member or by which she is employed. R.I. Gen. Laws § 36-14-5(e)(1),(2). Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner has officially severed her position with the agency. While section 5(e)(1) expressly provides that the Commission may find a hardship allowing the public official to appear, the other provisions do not contain this language.

In considering questions of hardship on a case by case basis, the Commission has focused on factors such as whether the matter to come before an agency involved a vested property right, pre-existing or recently acquired property rights or employment, or whether the matter involved a significant economic impact. This Commission has found a hardship to exist allowing persons to represent other people in limited cases.

Specifically, the Commission has found a hardship to exist 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 Ethics Commission did not find a hardship to exist. See A.O. 95-58. Compare with A.O. 92-44 (concluding that hardship did not exist for former member of Board of Examiners of Dentistry to represent a longstanding client before that Board). Additionally, the Commission recently found a hardship to exist 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 A.O. 99-6.

This matter is also appropriate for a finding of hardship. The petitioner represents that an elderly client recently passed away. That client had requested that she act as Executrix for her will and was estranged from her only son, who resides out of state. Additionally, the petitioner represents that the son has advised her that he will not contest the will. The petitioner also advises that the will must be filed by March 1. Finally, the petitioner is newly appointed to her position as Deputy Probate Judge. Given the nature of the client's family situation along with these other factors, the Commission finds such a hardship to exist if the petitioner were not to act as her client's executrix and/or attorney before the Probate Court, if necessary. Therefore, the petitioner may appear before the Probate Court, provided she recuses on such matter in accordance with Section 6 of the Code.

Code Citations:

36-14-5(e)

Related Advisory Opinions:

92-44
95-58
98-29
98-95

Keywords:

Client’s interest
Hardship exception