In re Judicial Ethics Op. 2015-1, 2015–1.

• Citation: 370 P.3d 842 (Mem)
• Decision Date: 16 April 2015
• Docket Number: No. 2015–1.,2015–1.
• Parties: JUDICIAL ETHICS OPINION 2015–1.
• Court: Oklahoma Judicial Ethics Advisory Panel

370 P.3d 842 (Mem)

JUDICIAL ETHICS OPINION 2015–1.

No. 2015–1.

Oklahoma Judicial Ethics Advisory Panel.

April 16, 2015.

Judicial Ethics Advisory Panel

¶ 1 Question:

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

¶ 2 Answer: Yes, with certain restrictions and exceptions.

¶ 3 Discussion:

Canon 2, Rule 2

Title 5. Chapter 1, Appendix 4, Section Rule 2.11(A)

Disqualification

"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 circumstances "

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 relationship

370 P.3d 843

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.

/S/Honorable Milton Craig, Chairman

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