August 13, 1985
A lawyer is not disqualified from appearing before a judge or tribunal while a member of the lawyer's firm is representing such judge or tribunal in pending litigation.
A lawyer is required to disclose the present representation of a judge or tribunal by a member of the lawyer's firm to all parties in litigation pending before such judge or tribunal.
References: MCPR DR 7-110(A); CI-1331.
A law firm whose members work extensively in workers compensation matters has been asked to represent 37 of 38 worker's compensation administrative law judges in a suit which may be filed to challenge the constitutionality of proposed legislation abolishing their present positions. The firm would be paid personally by each judge. The law firm asks whether the administrative law judges would be disqualified from hearing unrelated cases of firm members for the duration of the judges' representation, whether the firm would be required to disclose the representation of the judges in those unrelated cases, and whether the firm would be disqualified from representation in those unrelated cases.
The jurisdiction of the Committee is limited to the interpretation of the Code of Professional Responsibility or Michigan Code of Judicial Conduct. The Committee, through its opinions, does not and cannot pass upon any legal questions. Also, the Committee is not authorized to render an opinion of someone other than the party requesting the opinion. The administrative law judges have not joined in your request. Further, the disqualification of such judges seems to be essentially a question of law although ethics may be one of the issues to be examined in resolving this question of disqualification.
There seem to be two ethical questions raised as to the conduct of your firm:
- Would members of the firm be disqualified from appearing before these judges during the pendency of the litigation challenging the constitutionality of the legislation abolishing their positions while the law firm represents the judges in that litigation?
- If not disqualified, would members of the firm be required to disclose the firm's representation of the judges to all parties appearing in cases in which the firm is appearing before the judges?
The only provision of the Code of Professional Responsibility which might suggest or prohibit a lawyer from appearing before a judge when that lawyer or a member of his firm represents such judge in pending litigation is MCPR DR 7-110(A), which reads as follows:
"A lawyer shall not give or lend anything of value to a judge, official, or employee of a tribunal."
The Committee finds no opinions interpreting such section of the Code as to the aforesaid issue. The Committee finds such section not to be applicable in such case.
CI-1331 holds that the portions of the Code of Professional Responsibility relating to the avoidance of the appearance of impropriety suggest that in many instances it would be preferable for a firm not to appear before a judge who is then being represented by the firm. The rationale and basis for such opinion is ABA Model Code of Professional Responsibility, Ethical Consideration 8-8. The Ethical Considerations were rejected when the Michigan Supreme Court adopted the Code of Professional Responsibility. Such opinion also indicated disqualification was a matter "left to the good judgement and conscience of the individual judge rather than presenting an ethical problem for the lawyer."
The firm is not per se disqualified from appearing before the judges during the pendency of litigation in which the firm is representing the judges.
Are members of the firm ethically required to disclose the firm's representation of the judges? C-216 held that an attorney in whose law firm a relative of the Judge within the third degree is working should disclose that relationship to the Judge and all parties.
In North Carolina Op 745, April 16, 1971, a lawyer representing a judge in domestic relations negotiations could appear before that judge if he disclosed his relationship to opposing counsel. This Committee would likewise require members of the firm to disclose the representation of the judges to all counsel.