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Ethics Opinion

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CI-1095

July 8, 1985

SYLLABUS

    A judge is not disqualified from hearing the case of a client of an associate lawyer of the judge's former partner (P.C. stockholder) within the two-year rule period simply because of the associate's relationship with the former partner, where the associate did not perform any legal service for or on behalf of the judge nor share mutual professional responsibility with the judge, notwithstanding the association occurred and existed while the judge was in the process of concluding law practice in the same building occupied by the associate and occasional communications occurred between them to facilitate a smooth transition of clients to the former partner.

    References: MCJC 2(A); CI-260.

TEXT

A judicial candidate withdrew as a member of a law firm professional corporation; the judge's share in the PC was purchased by a lawyer shareholder who subsequently formed his own professional corporation soon after the candidate's withdrawal. The candidate continued to maintain an office as a sole practitioner in the same building as the lawyer shareholder for the purpose of wrapping up law practice; the candidate used and paid for support staff employed by the lawyer shareholder.

After purchasing the candidate's shares and while the candidate was in solo practice, the lawyer shareholder hired an associate. The associate's only involvement with the candidate was occasional communication about legal matters which related to strategy and status of cases formerly handled by the professional corporation but now handled by the firm of the lawyer shareholder.

After the candidate was elected judge, the solo practice was terminated. three months after the candidate took office, the lawyer shareholder hired a second associate. The candidate continues to have an interest in some accounts receivable in which the lawyer shareholder also has interest.

According to the factual information given the committee, the first associate never rendered legal assistance to the candidate or on behalf of the clients of the candidate, and never had any shared responsibility or involvement in cases with the candidate, except on a transitional basis to facilitate transfer of client files. The second associate, as of the time this request for opinion was submitted, had not met the candidate either professionally or socially.

The first associate asks whether the candidate is disqualified from hearing matters of clients represented by the associate because of the associate's position with his association with the lawyer shareholder and familiarity with the candidate occasioned by the office sharing arrangement between the lawyer shareholder and the candidate.

The second associate asks whether the candidate is disqualified from hearing matters of clients represented by the associate because of association with the lawyer shareholder's new professional corporation.

Each inquirer posed the question differently than as recited above. The question as submitted dealt with the disqualification of the associate to represent a client before the candidate. However, each referred to Canon 2(A) of the Michigan Code of Judicial Conduct. This, together with the context in which the inquiries have been made, makes it eminently clear the above recitals of questions were intended.

MCR 2.003(B) may be inapplicable since neither associate was a member of the law firm in which the candidate was a principal. Questions of law cannot be resolved by the Committee.

Each inquirer cites CI-260 as precedent for an opinion that each question presented should be answered in the negative. This writer is inclined to agree that based upon the facts as presented, CI-260 is reasonable precedent for a responsive opinion that the candidate is not disqualified from hearing matters of clients represented by the associates simply because of (1) their association with the lawyer shareholder and (2) the former office sharing arrangement.

The syllabus of CI-260 states:

    "A person elected district judge who has been a partner of a prosecuting attorney whose staff was separate from that of the partnership is not disqualified from hearing cases presented by a new prosecuting attorney or any of the assistants who served under the former partner.

    "Such individual is disqualified for a period of two years from hearing cases presented by such former partner if he continues as prosecuting attorney. He is not disqualified from hearing matters presented by assistant prosecuting attorneys."

However, questions of disqualification which may arise in the future must be examined on an individual basis. These may well involve considerations to which CI-260 is unresponsive. The candidate may well recuse to assure compliance with the appropriate canons when a genuine conflict of interest either exists or foreseeably could exist.

 
     

 

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