December 15, 2003
A full time employed circuit court attorney referee may not act in the dual capacity of referee and at other times as advocate of the Friend of the Court in contested matters.
References: MCJC 5F; J-2; JI-77, JI-126; MCR 9.201(2); MCL 552.501, 555.507.
A county Friend of the Court ("FOC") requests an opinion from the State Bar of Michigan Professional and Judicial Ethics Committee on the use of full-time FOC employed attorney-referees appearing as advocates on behalf of their employer in contested matters initiated by the FOC or private practitioners. The particular attorney-referee is assigned to a Family court Judge, but would not appear in a representative capacity before another referee or the judge to whom the attorney referee is assigned. Another attorney referee would advocate the FOC position of the first attorney advocate assigned to a particular court.
MCR 9.201(2) defines the term "judge" to include a referee of any court and JI-29 states that an attorney referee has the status of a quasi-judicial public officer created pursuant to the Friend of the Court Act of 1982, Act 294, MCL 552.501; MSA 25.76(1) et seq. Therefore, it is safe to conclude that the Michigan Code of Judicial Conduct (MCJC) applies to attorney referees. MCJC 5F states:
"F. Practice of Law. A judge should not practice law for compensation except as otherwise provided by law."
The key phrase in this rule is the "practice of law". The absence of compensation does not mitigate the prohibition that advocacy is inconsistent with judicial office and banned completely, except for pro se matters. See J-2. While there is no precise definition as to what constitutes the practice of law, it is universally recognized that the practice of law entails the advocacyof one individual on behalf of another personor entity in a representative capacity.
To be distinguished is the situation where a full time circuit referee is asked to present his or her findings of fact and/or ruling recommendations to the circuit court judge.Also distinguished are full-time employed circuit court attorney/referees who are casual or part-time referees whom the law specifically allows to practice law under limited circumstances. JI-126. The Committee opined in JI-77 that:
"Other statutes that contemplated the appointment of lawyer referees on a casual of part-time basis seem to imply that the appointee will not relinquish the private practice in the jurisdiction served or elsewhere."
Thus, it is the opinion of this Committee that since MCL 552.501 et seq does not authorize the duel function of full-time circuit court attorney/referee and advocate and MCJC 5F and MCR 9.201(2) prohibit judicial officers from practicing law in a representative capacity, until there is a change in the law, a full-time circuit court employed attorney referee may not appear before a judge in a representative capacity on behalf of his/her employer to argue contested recommendations on behalf of the FOC or otherwise.