Request By:
Mr. M. J. Cooper
Box 14
Vanceburg, Kentucky 41179
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask questions about trial commissioners who will serve in district courts beginning January 2, 1978. In any county which does not have a district judge resident in the county, there shall be a trial commissioner. KRS 24A.100(1).
You ask: Can a trial commissioner, who is an attorney, be appointed as an executor or an administrator in or by his own court? The statute relating to trial commissioners is silent on this point. KRS 24A.100. It merely states that he shall perform such duties as may be directed by the Supreme Court of Kentucky. See § 113, Kentucky Constitution, which contains the same provision. The trial commissioner must be an attorney if one is qualified and available. Section 113(5), Constitution.
Certain rules regarding trial commissioners have been proposed, and we are told that the Supreme Court will adopt them. They too are silent on the question you raise.
The district court has exclusive jurisdiction in matters involving probate, except matters contested in an adversary proceeding. KRS 24A.120(2). Under proposed rule 5.030(C), each trial commissioner shall have the authority of a district judge with respect to certain enumerated subjects, subject to review by the chief district judge or by another judge of the district designated by the chief judge. The enumerated subjects include probate matters and the authority to record or reject any will offered for probate and the authority to appoint executors and administrators of wills and estates, and to fix and approve bond as required.
Proposed rule 5.050 provides that a trial commissioner shall disqualify himself in all matters in which he has an interest, relationship or bias that would disqualify a judge. See KRS 26A.015.
If a trial commissioner were appointed as an executor or administrator, he would have to disqualify himself while acting in a particular matter or estate if his appointment involved the estate in question. KRS 26A.015. We can find no statute expressly prohibiting the trial commissioner from being appointed as an executor or administrator.
You ask: Can the trial commissioner represent any person in a misdemeanor case in district court? There would be a practical incompatibility if he is acting as trial commissioner in such case, since obviously he cannot be judge and defense lawyer at the same time. The statutes and rules do not cover this question. You ask: What effect would his acting as trial commissioner have on his law partners?
The matters of a trial commissioner's representing defendants and estates in the same court and the effect upon the commissioner's law partners raise ethical questions. However, as Mr. Les Whitmer told you, only an affected attorney or local bar association can ask the Director of the Kentucky Bar Association to refer such ethics questions to the legal ethics committee for an advisory opinion. R.A.P. 3.530.