Opinion 51
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rule is 2-3.10 Practice of Law.)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 51
Issue:
Under section 473.091 effective January 1, 1981, is it improper for the Probate Court to advise people with respect to applications for refusals of letters for spouses and creditors under Section 473.090 RSMo and to prepare for them applications and orders for refusal?
Discussion:
Previously in Opinion 26 the Commission on Retirement, Removal and Discipline held “that for a judge to advise people concerning applications for refusal of letters and to allow the clerk to prepare such applications constitutes the practice of law and is prohibited by Supreme Court Rule 2, Canon 5(F) and Section 476.290 RSMo.
Subsequently, the Missouri Legislature has passed the following provision:
Section 473.091. Clerk’s duties as to Section 473.091:
Clerk’s duties as to certain forms – not practice of law. – 473-091. Upon request to the judge of the probate division of the circuit court, clerks of the court shall under his supervision assist in filling out all forms necessary for obtaining an order of refusal of letters of administration pursuant to section 473.090, and the performance of the duties required by this section shall not constitute the practice of law as defined in section 484.010, RSMo. Such request shall be made by the person entitled thereto either in personam or by attorney, but no person shall be required to obtain an attorney to make such application.
It is clear that the intent of the Missouri Legislature was to allow the Probate Court to advise people and assist them in filling out all forms necessary to obtain an order of refusal of letters of administration. It has been held that the Supreme Court has the paramount and exclusive right to regulate the practice of law. However, the legislature may enact laws concerning the practice of law which will be valid unless they unreasonably encroach upon the power of the courts. (State v. Sartorius, 175 S.W.2d 783, 786 (MO. 1943)).
It is, therefore the Commission’s opinion that as a result of VAMS 473.091 a Probate Court may advise people with respect to applications for refusal of letters.
(Dated: January 12, 1981)