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Opinion

Opinion CJE Opinion No. 2001-17

Date: 12/18/2001
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.

Hearing Cases of Attorneys Associated With Father

You have inquired about your ability to sit on cases being handled by two lawyers who were associated with your father in a particular matter at the time of his death. Your father's estate was not probated because there were no assets that required probate. Later, a voluntary administration was filed by your sister for an insurance policy that was discovered.

The case that your father was handling with the two lawyers has now been settled for a substantial amount, and part of the fee is now due to your father's estate. Your sister has hired an attorney to probate the estate because of the appearance of this new asset. You report that she has received a check from the attorney for the estate and we assume that the check represents the entire amount of the fee owing to your father's estate as a result of the settlement of the litigation. Your sister believes that the estate will be in existence for nine months to a year once her appointment is formalized.

You inquire whether you should recuse yourself whenever the attorney for your father's estate or one of the attorneys associated with your father in the described litigation appears before you. Assuming that you are a beneficiary of your father's estate, we believe that Canon 3(C)(1) suggests that you should disqualify yourself from cases involving the attorney for your father's estate so long as the estate is open. A person might reasonably question your impartiality in handling such cases because that attorney may well be involved in making decisions with financial implications for you. As to the two attorneys who were associated with the described litigation, we see no need for you to disqualify yourself since they have paid to your father's estate the portion of the fee that was due to him. Once that was done there is no basis that we know of upon which your impartiality might reasonably be questioned by reason of the past association with your father.

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