Judicial Ethics Opinion 2015-1

Judicial Ethics Adv1sory Panel

1 1 Questwn

May a district judge sit in routine, uncontested probate matters when counsel for the Personal Representatlve is a child of the judge, and the Personal Representative of the estate consents to the judge acting in the cause? -

12 Answer: Yes,; with certain restrictions and exceptions.

{ 3 Discussion:

Canon 2, Rule 2

Title 5. Chapter 1, Appendlx 4, Sectlon Rule 211(A)

Dzsqualzf’zcatzon

"A Judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following ctreumstamces "

2) if a person related to the judge is related within the third degree of relationship to any of them, or the spouse of such a person is"

b. acting as a lawyer. in the proceeding »

4 Title 20, § 1401(a)(b) would allow waiver of recusal if consented to by the parties. It is our opinion that notice of the relation*843ship must always be given to the parties and waiver obtained. We also stress that this applies only to routine and uncontested matters in probate court and such matters a setting of attorney fees and final decrees of distributions (for example) are matters on which recusal should not be sought,

[ 5 We are not unmindful that being asked to waive recusal puts an undue burden on an attorney who practices regularly before a judge and should. not be requested routinely. In our opinion, the better practice would be to limit such requests as much as reasonably possible. We feel that to automatically require a judge to recuse from using uncontested routine orders in a probate proceeding places an undue burden on the court system in a small county where that judge may be the only available judge on a daily basis.