I paid a Probate Judge's bill for special sessions I requested. Opposing counsel says that's improper. Is it ethical for a lawyer to pay a probate judge for special-session time?

Plain-English summary

The inquiring attorney arranged a guardianship for a Rhode Island resident who sustained severe head injury in an out-of-state accident, filing the guardianship pleadings in the appropriate Probate Court. During the litigation, the attorney requested two special sessions in the Probate Court. After the matter resolved, the Probate Judge sent the attorney a bill for the time spent in those special sessions. The attorney does not dispute the amount, but the out-of-state attorney representing the plaintiff in the personal injury case questioned the propriety of paying the Probate Judge. The attorney asked whether it is ethically appropriate to pay the Probate Judge for the time spent at a special session.

As a threshold matter, the panel declined to comment on the conduct of a judge, explaining that the Probate Judge's conduct is controlled by or subject to the Canons of Judicial Ethics and not the Rules of Professional Conduct, and that the panel does not comment on whether receiving money for special sessions violates the Judicial Canons.

The panel said it understands paying for special sessions to be a common practice in Rhode Island Probate Courts that has not been determined to be illegal or unethical. Therefore, a lawyer participating in such a practice could not be acting in violation of Rule 8.4(f), which provides that it is professional misconduct for a lawyer to knowingly assist a judge in conduct that violates applicable rules of judicial conduct or other law.

In practice

Under this opinion, a lawyer's payment of a Probate Judge's bill for special sessions the lawyer requested does not violate Rule 8.4(f), because the panel understands the practice to be common in Rhode Island Probate Courts and not determined to be illegal or unethical. The opinion expressly does not evaluate the judge's own conduct, which falls under the Canons of Judicial Ethics rather than the Rules of Professional Conduct.

Common questions

Q: Is it a violation for a lawyer to pay a probate judge for special-session time?

A: Per the opinion, no; because the practice is understood to be common in Rhode Island Probate Courts and not determined to be illegal or unethical, a lawyer participating in it could not be violating Rule 8.4(f).

Q: Did the panel decide whether the judge acted properly?

A: Per the opinion, no; the panel declined to comment on the judge's conduct, which is governed by the Canons of Judicial Ethics, not the Rules of Professional Conduct.

Q: What does Rule 8.4(f) prohibit here?

A: Per the opinion, Rule 8.4(f) makes it misconduct for a lawyer to knowingly assist a judge in conduct that violates applicable rules of judicial conduct or other law.

Background and rules framework

The opinion applies Rhode Island Rule 8.4(f) (knowingly assisting a judge in conduct that violates judicial-conduct rules or other law), corresponding to Model Rule 8.4(f), and distinguishes the Canons of Judicial Ethics, which govern the judge and which the panel does not interpret. The panel's conclusion rests on its understanding that the payment practice is common and not determined to be illegal or unethical.

Citations and references

Rules of Professional Conduct:

• MR 8.4(f) (knowingly assisting a judge in judicial-conduct violations)
• RI RPC 8.4(f)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-14: Appearing Before a Judge the Firm Does Estate Work For
• RI EAP Op. 90-28: Part-Time Probate Judge Representing Clients Before Zoning Boards
• RI EAP Op. 92-78: An Attorney Married to a Judge's Court Clerk

Currency note

This opinion was issued in 1992 (Opinion 92-83, issued November 18, 1992), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 8.4 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended Rule 8.4 (misconduct); Rhode Island's judicial-conduct rules have also since been revised. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2092-83.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion 92-83, Request #311
Issued November 18, 1992

An attorney seeks Panel advice with regard to the following circumstances. The attorney arranged a guardianship for a Rhode Island resident who sustained severe head injury in an out of state accident. The attorney filed the guardianship pleadings in the appropriate Probate Court. During the course of litigation, the attorney requested two special sessions in the Probate Court. After the resolution of this matter, the Probate Judge sent the attorney a bill for the time spent in these special sessions. The attorney advises the Panel that the attorney does not dispute the amount of the bill. However, the out of state attorney who represents the plaintiff in the personal injury case has questioned the propriety of paying the Probate Judge. The attorney asks whether it is ethically appropriate to pay the Probate Judge for the time spent at a special session.

As a threshold matter, the Panel declines to comment on the conduct of a Judge. The Probate Judge's conduct is controlled by or subject to the Canons of Judicial Ethics and not the Rules of Professional Conduct. The Panel does not comment on whether or not receiving money for special sessions is a violation of the Judicial Canons. The Panel understands this to be a common practice in Rhode Island Probate Courts and has not been determined to be illegal or unethical. Therefore, the lawyer participating in such practice could not be acting in violation of Rule 8.4(f). See, Rule 8.4(f) entitled "Misconduct" which states that it is professional misconduct for a lawyer to knowingly assist a judge in conduct that is a violation of applicable rules of judicial conduct or other law.