CI-779

July 19, 1982

SYLLABUS

    A part-time probate judge may continue to practice law with law partners; however, neither the part-time probate judge nor any of his or her partners may practice in the part-time probate judge's court.

    References: CI-154, CI-169; DR 2-102(B); MCL 600.839; ABA Op 858 and 1053.

TEXT

An inquiry has been made concerning the ethical considerations where a lawyer in a law firm becomes a part-time probate judge. In such a situation it is clear that the part-time probate judge may not appear as counsel in any matter in the court, even if a visiting judge were to hold court on such occasion. MCL 600.839; MSA 27A.839. A partner of a part-time probate judge is prohibited from practicing in his or partner's court by both the statutory amendment, supra, and GCR 912.2(a)(4).

In the event that the part-time probate judge ceases to practice law with his or her former partners, his or her name must be removed from the firm name, DR 2-102(B); however, so long as the part-time probate judge does practice law, his or her name can remain with the firm.

This Committee in CI-164 and CI-169 has reviewed other considerations concerning a part-time probate judgeship. Other than the statutory and court rule clarifications cited, there appear to be no changes to the considerations set forth in CI-164 and CI-169.

It is noted that Idaho and Kansas have reached similar conclusions with respect to part-time probate judges and no other state ethics committee has opined to the contrary.

The American Bar association Ethics Committee rendered informal opinion 1294 which is consistent with this committee's opinions. However, the ABA Committee did comment upon the ethical tightrope a part-time probate judge must balance and opined that:

"It is virtually impossible for a probate judge to continue to practice law within the jurisdiction served by him or her as a judge or in opposition to counsel who appear before him or her from time to time without violation of the spirit and intent of the Code of Judicial Conduct." The ABA Committee concluded by urging that State Ethics Committees "encourage by all appropriate means that an adequate salary be paid to the probate judge so that the judge need not seek supplemental income by the practice of law or other extra-judicial activity."