October 11, 1983
A lawyer who is a magistrate cannot accept a retainer or act as a lawyer on behalf of any person in any case where he/she has previously acted as a magistrate.
References: MCPR DR 9-101(A); Op 95.
A lawyer is an appointed magistrate in a district court. The family of a defendant in a criminal case makes contact with the lawyer regarding possible representation. The lawyer meets with the incarcerated defendant, who says he believes the lawyer was the arraigning magistrate in the case. The lawyer does not recollect the defendant or the case, and believes that as magistrate he was not privy to any facts or circumstances not otherwise a matter of public record.
The defendant and his family still want the lawyer to represent him. The lawyer determines that in addition to setting the defendant's bond at arraignment, he also was responsible for issuing the complaint and warrant. Current proceedings will not involve the issue of bond or abuse of discretion.
Would it be appropriate for the lawyer to represent the defendant on criminal charges in circuit court after having been the arraigning magistrate in district court?
MCPR DR 9-101(A) states:
"(A) A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity."
Op 95 states that a lawyer who is a justice of the peace cannot accept a retainer or act as a lawyer on behalf of any person in any case where he has previously acted in an official capacity. That opinion dealt with a justice of the peace asking whether the fact that he issued a warrant in a case automatically barred him from representing the individual. The opinion answered:
"Canon 6 of the Canons of Professional Ethics provides . . . [i]t is unprofessional to represent conflicting interests, except by express consent of all concerned given after full disclosure of the facts . . . . Manifestly, when a lawyer is at the same time a justice of the peace, a conflict of interest is frequently apt to arise between his duty toward the public and some client. Canon 6 stands as a warning to a lawyer against permitting any such conflicts to arise which might induce him to represent conflicting interests.
"A justice of the peace has power to issue a warrant for the arrest of a person upon sworn complaint. In doing so, a justice of the peace must make an official determination that a sworn complaint has been filed before him and that it appears to him that the offense has been committed and that there is just cause to suspect Y to have been guilty thereof. His action in issuing a warrant is not merely mechanical. On the contrary a justice of the peace is vested with discretionary power and must affirmatively determine certain basic facts before he has a right to issue a warrant. Having acted in this capacity as justice of the peace on behalf of the people of the State of Michigan he cannot thereafter represent anyone charged with such offense, either in a criminal or civil case growing out of the same set of facts. (See Judicial Canon 24)
"Canon 6 recognizes an exception to the effect that a lawyer can act: 'by express consent of all concerned given after a full disclosure of facts.' However, this is a restricted exception which does not apply in any case where the lawyer occupies a public office. Public 'consent' cannot be obtained and can never be presumed.
"Therefore it is our opinion that a lawyer who is justice of the peace cannot accept a retainer or act as a lawyer on behalf of any person in any case where he has previously acted in a judicial capacity."
The reasoning of this opinion is equally compelling and equally applicable when applied to a magistrate. Therefore a lawyer who is a magistrate cannot accept a retainer or act as a lawyer on behalf of any person in any case where he has previously acted in an official capacity.