Code of Judicial Conduct
The Code of Judicial Conduct, Canons 21-001 through 21-901 (New Mexico Rules Annotated, Volume 2), contains ethics rules that pertain to probate judges. Canon 21-901(C) lists which provisions of the Code of Judicial Conduct do not apply to probate judges.

Probate judges should carefully read and familiarize themselves with all sections of the Code of Judicial Conduct and determine which ones apply to them!

In general, probate judges must:

• Uphold the integrity and independence of the judiciary;
• Avoid impropriety and the appearance of impropriety;
• Perform their job duties impartially and diligently;
• Disqualify themselves when a conflict of interest exists or arises;
• Act carefully with respect to activities outside of their judgeship;
• Follow election and political activities restrictions;
• Follow campaign fund-raising rules that apply to probate judges.

Probate judges may:

• Ask judges, attorneys, or other disinterested experts for help without informing the parties in the probate (21-300(B)(7)(b), 21-901);
• Practice law if they are licensed attorneys in New Mexico;
• Personally solicit attorneys for campaign contributions (although it may not be a good idea);
• Speak, write, lecture and teach about various legal and non-legal subjects.

Probate judges may not:

• Hold any party political office such as state central political committee, ward chair, etc. (see 21-700(A);
• Lobby the legislature as a judge except as to matters relating to the judiciary (you may lobby pro se in matters involving you or your own personal interests);
• Engage in financial and business dealings that exploit the judge’s judicial position;
• Accept gifts, bequests, favors, or loans from anyone except friends and relatives and a few other exceptions, see 21-500(D)(5).

Ex Parte Communications by Judge with Parties
Under the Code of Judicial Conduct, a “judge shall not initiate, permit, or consider ex-parte communications or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding…," Canon 21-300 B (7) New Mexico Rules Annotated (NMRA).

• Probate judges and their staffs need to be careful about not talking to one party or family member alone about the case.
• Copies of any letters or other communications should be directed to all people affected or only to the attorneys who have entered an appearance in the case, if any.
• Telephone callers involved in a case need to be informed about this duty.
• You should also be careful about email communications.

If an estate is open in the probate court, any "objections" raised by parties to the case should be in writing and filed with the Court, so that (1) the issue is in the Court record, and (2) the judge is not accused of any impropriety through improper contact with any of the parties.

Sometimes a judge (or staff person) does not realize at the time of a conversation that the person is connected to a case filed with the Court and will end up talking with one party without the knowledge of other interested persons. Email can be particularly problematic.

In order to avoid the appearance of impropriety, you should make everyone aware of your duty to make all communications available to all parties.

A simple ntroductory procedure can help eliminate this problem. If a person's questions seem general and related to procedure, rather than disputes, the judge may not need to inquire further. Fut if the person is complaining about the personal representative, or asking "What if so-and-so has not done so-and-so?" or seems to be involved in a dispute about an estate, more inquiry may be advisable before answering the person's questions.

Before proceeding further in conversations about cases involving potential disputes, the judge or staff can ask (1) Is this case already filed in the Probate Court?, and (2) Are you a party to the case? If the person answers "yes" to either question, then the judge or staff can say something like, "I am not allowed to give legal advice to anybody. Nor am I allowed to talk with one party in the case without talking to all parties. Please talk directly to the personal representative or hire an attorny to assist you." If the case has been filed in another court, you should advise them that you are not allowed to comment on what another court may or may not have done. Even if a probate case has not been filed, you need to remind the person that you are not allowed to give legal advice.

Your staff should also be aware that they are not allowed ot comment on how you as the judge might decide to proceed in a matter that comes before the Court.

Your job is to act impartially and fairly and not to treat one person or attorney more favorably than another.

Note: See Canon 21-300 B (7)(a)-(e) for exceptions to this prohibition

Confidentiality v. Public Record
Unless specifically placed under seal (or sequestered) all documents filed with the court are public record. Although it would be unusual for a probate court to seal records (usually this would happen in the district court), it is possible.

• The general public is allowed to view anything that has been filed with the court, whether they have an interest in the case or not. A person is not required to prove who they are or why they have an interest in a particular case in order to receive copies of any documents filed with the court.

Note: Sometimes you will get a "funny feeling" about someone requesting information about a case--then you may need to monitor the case for anything that indicates a potential problem with the case. You may also want to have your staff note any unusual requests.

• The dissemination of information concerning the case should be restricted to documents that have been filed with the court, i.e. what a person could find out by viewing the file and not what you may have discovered through conversations or correspondence with parties to the case. If it's not in the file, it is not part of the case as far as public record is concerned.
  
• You may also need to advise anyone calling the court that any concerns they have must be placed in writing in order to make them part of the court's record.
  
• Always keep in mind the prohibition against ex parte communications

Unauthorized Practice of Law
There is a fine line between providing legal information and giving legal advice. Providing information is acceptable; giving legal advice is not. Be careful!

Providing Forms v. Filling Out Forms—judges and their staff can answer questions about the do-it-yourself probate forms and procedureal requirements of the court. They can explain the difference between testate and intestate estates and assist pro se applicants in identifying the correct packet to purchase. They can cite black letter law regarding titles to property. These issues often arise at the county clerk and assessor's offices, as well as the probate courts.

For example, it is appropriate for a judge to say, "I am not allowed to give you legal advice, but I can tell you that the law says that a joint tenancy deed to a house means that the house passes automatically to the surviving joint tenant at the death of the first joint tenant and should not require a court probate." It probably also appropriate to say, "I am not allowed to give you legal advice, but New Mexico law says that a bank account with a 'payable on death' beneficiary disignation passes automatically to that beneficiary upon the death of the account owner. Contact the financial institution for further information on how to claim the bank account."

While it is appropriate to explain black letter laws and the use of probate forms, judges cannot fill out the forms, prepare deeds, or prepare affidavits or other documents for anyone.

Probate judges who have paralegals helping them wht court business should be aware that in 2004 the New Mexico Supreme Court approved a new rule about using paralegals. In response to input from the Bernalillo County Probate Court, the final final rule allows court paralegals to explain forms, but not to fill them out for a pro se applicant. Rule 20-103 reads:

A paralegal shall not:
A. provide legal advice;
B. represent a client in court except to the extent authorized by law;
C. select, explain, draft, or recommend the use of any legal document to or for any person other than the attorney who supervises the paralegal, unless the supervising attorney or judge, in the case of paralegals employed by the courts, so directs;
D. engate in conduct that constitutes the unauthorized practice of law
[Sections E through H omitted}

The article titled "No Legal Advice from Court Personnel--What Does That Mean?" by John M. Greacen discusses some of the above topics.

See also Section 36-2-28 regarding the criminal offense of the unauthorized practice of law. Non-lawyers can prepare their own legal documents, but cannot prepare legal documents for anyone else.

Finally, the following article about the unauthorized practice of law appeared in the Albuquerque Journal in 2004. All of Judge Rudd's prior columns are available on the court website.

Ask the Probate Judge - Unauthorized Practice of Law
by Merri Rudd, appeared August 19, 2004, Albuquerque Journal, Business Outlook. Reprinted with permission.

Q: A recent article in the Albuquerque Journal stated that the ONLY kind of revocable living trust accepted by the courts in New Mexico is one that is prepared/submitted by an attorney. Is this true? Does the court accept or reject any revocable living trust prepared by a paralegal? G.A., Albuquerque

Q: I established a living trust that was executed by someone who is not a lawyer. Then I heard another lawyer state that living trusts should only be executed by a lawyer. I am concerned as to whether or not my revocable living trust is legal. Does a living trust have to be executed by a lawyer to be legal? All appropriate documents have been notarized, and my property deed has been recorded with the county clerk. R.N., Albuquerque

These two questions raise interesting issues. A prior column addressed whether a private individual with no law training could write wills for others and whether a will prepared by such an individual would be legal.

This important topic merits further discussion, especially since I received two similar letters the same week.

It is a criminal violation in New Mexico for a non-lawyer to prepare a will, trust, or other legal document without an attorney's help. When a non-lawyer prepares legal documents for others without being supervised by an attorney licensed in New Mexico, it is called the "unauthorized practice of law." Anyone found guilty of this crime can be fined up to $500 or imprisoned up to six months, or both.

Individuals may prepare their own wills and living trusts, even though doing so is usually not wise. One must understand not only how to draft legal documents, but also community property, tax, estate planning, and other laws.

It is possible that an attorney is supervising the non-lawyers in the above questions. You might call the organizations that prepared the trusts and inquire. In the second question, it is good that the trust document is notarized. It is also proper to record the new deed with the county clerk.

A court should not be involved in a trust if all of the trustor's property was properly transferred into the trust. Usually a court does not have the opportunity to "accept or reject any revocable living trust," no matter who prepared it. Only if a dispute arises or some property was omitted from the trust should court intervention be necessary.

If a paralegal or other non-lawyer prepared a trust without the supervision of an attorney licensed in New Mexico, the trust might be valid if it were properly drafted and notarized. But any non-lawyer who prepares a trust for another person is still violating state law in doing so.

You both might want to hire a reputable attorney licensed in New Mexico to review your trust documents. If the documents are deficient, however, the attorney may recommend that you start over again from scratch.

If you have encountered a paralegal or other non-lawyer who is practicing law without a license and drafting legal documents without the supervision of an attorney, I urge you to report that person to the Unauthorized Practice of Law Committee of the State Bar, P.O. Box 92860, Albuquerque, NM 87199-2860, 505-797-6068.

© 2004 by Merri Rudd & Albuquerque Journal, All rights reserved.