OBA Ethics Counsel
Ethics Opinion No. 100
December 26, 1935
1. Attorneys - Unprofessional Employment - Ex-Judges.
A county judge admitted a will to probate and thereupon appointed an administrator with the will annexed. After the retirement of the judge from office the administrator was removed, another administrator was appointed who resigned, whereupon another administrator was appointed. From the order of appointment of the last administrator an appeal has been taken. Held, that the ex-county judge may properly accept employment from the last appointed administrator to sustain his appointment.
The Board is in receipt of the following request for an advisory opinion:
"In 1929 I was county judge. There was filed in my court a petition to probate a will, which I denied. An appeal was taken from the order as a result of which, it was ordered that the will be admitted to probate and I appointed an administrator with the will annexed and approved his bond.
After I retired from office, the administrator was removed. Another was appointed and he resigned, whereupon still another administrator was appointed.
I knew nothing about these proceedings until the last appointed administrator sought to engage my services, an appeal having been taken from the order of his appointment.
Under such circumstances, would it be in violation of any rule of professional conduct of the State Bar, were I to accept employment from the aforesaid administrator?"
Rule 38 of the Rules of Professional Conduct provides:
"A lawyer should not accept employment as an advocate in any matter upon which the merits of which he has previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ."
The admitting of the will to probate is a finality and is not now an issue. The appointment of the first administrator is not now an issue. The member of the bar concerned did not investigate, nor pass upon the merits of, the appointment of the last administrator.
It is the opinion of the Board, therefore, that the inquiring member of the State Bar would not violate any rule of professional conduct were he to accept employment from the person now assuming to act as the administrator of the estate.