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Special rules govern judges serving as PR of an estate. In re Brooks (2021, NC Supreme Court)

In In re Brooks (opinion here) the NC Supreme Court issued a good reminder for estate administration attorneys that certain PRs are subject to unique rules, namely: judges as PRs.

On April 16, 2021 the NC Supreme Court suspended Judge William F. Brooks of the 23rd Judicial District (Alleghany, Ashe, Wilkes, Yadkin) for 30 days for (a) serving as PR in 2 estates for non-family members, and (b) failing to disclose income from said service which exceeded $2,000 - as total PR commissions exceeded $87,000. Both issues were expressly prohibited by the Code of Judicial Conduct (code here).

There is nothing other than the Court's opinion available in the public record. The record below is "restricted" and neither party filed briefs. The Court sat instead in the rare posture of original jurisdiction (not as an appellate court). In the end, the Court's ruling exceeded the punishment suggest by the NC Judicial Standards Commission (censure).

What facts were disclosed support the Court's harsher ruling: the Judge in the case at hand was serving as PR and petitioning for (high) fees in estates within the same judicial district he served. "This [was] an additional aggravating factor that created the appearance of a lack of judicial independence."

The 2 estates Judge Brooks represented were prior estate planning clients of his, and for individuals who were so close as to being "like family." (Judge Brooks was in private practice when he wrote both decedents' Wills, each appointing him as PR, in 2009; he was appointed to the bench in 2013; both clients died in 2014; both estates were closed in 2017.)

It is not clear from the opinion if Judge Brooks (as PR) had legal counsel or was representing himself.

Takeaways for estate planning/probate counsel:

  • Not all clients (PRs) serve under the same rules, especially public figures.

  • If you are lucky (unlucky?) enough to become a judge, seek counsel regarding any continuation of prior work from your private practice.

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