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Ethics Opinion

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C-216

June, 1979

SYLLABUS

  1. A judge is automatically disqualified from presiding over a case or proceeding in which one of the lawyers appearing before the court is related to the judge within the third degree of consanguinity or affinity.

  2. A judge is not automatically disqualified from hearing a case conducted by an unrelated lawyer simply because a relative of the judge within the third degree is a member of or a lawyer employee of the same law firm as the lawyer conducting the case. A judge so related should disclose that relationship to all parties and raise the issue of disqualification. The judge should disqualify himself or herself unless all parties formally request the judge to continue with the case, in which case the judge may do so, provided there are no other grounds for disqualification, and provided that the relative does not work directly on the case.

  3. Where a relative of a judge within the third degree is working as a legal assistant or other paralegal in the same law firm as a lawyer appearing before the judge, the same requirements and procedures should apply.

  4. A lawyer 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.

    References: MCJC 3; GCR 912(5). CI-275 is superseded.

TEXT

A lawyer wishes to hire as an associate the son of one of two circuit judges before whom the lawyer regularly practices. Another lawyer has employed a legal assistant working who is the daughter of one circuit judge and the cousin of another; the lawyer regularly practices before both judges. The lawyers ask about the propriety of members of the law firm appearing before the judges who are closely related to firm employees.

Opinion CI-275, based on GCR 1963, 405, held that members and associates of a law firm cannot practice in the Court of a Circuit Judge who is a brother of a member or associate in the firm. GCR 405.1 disqualified a trial judge who "is related within the fifth degree (civil law) of consanguinity or affinity to any of the attorneys or counselors for any party." The opinion interpreted the court rule to require disqualification of a judge if a relative within the fifth degree was a member of or an lawyer employee working in the same law firm as a lawyer appearing before the judge.

Since the issuance of CI-275, the Michigan Supreme Court has repealed GCR 1963, 405, and replaced it with GCR 912, effective January 23, 1978. The language of former GCR 405.1 was incorporated into GCR 912(5), with certain changes which the committee believes were made for the purpose of producing a different result. GCR 912 states in part:

    ". . . A judge is disqualified when he cannot impartially hear a case, including a proceeding where the judge:

      ". . .

      "(5) Is within the third degree (civil law) of consanguinity or affinity to a person acting as an attorney . . . ." Emphasis added.

The committee believes that there is a distinction made between the language in former GCR 405.1: "any of the attorneys or counselors for any party," and the language in present GCR 912(5): "a person acting as an attorney." The language of GCR 912(5) more precisely defines the class of persons whose relationship to the judge would require disqualification.

The Drafting Committee Notes to GCR 912(5) clearly indicate the intent to the new rule:

    ". . . A judge is disqualified, for example, if his parent, child, uncle, spouse is acting as an attorney in the proceeding. The language 'a proceeding where the Judge is within the third degree of consanguinity of affinity to a person acting as an attorney' is an attempt to define more precisely the class of persons who would be covered by this sub-rule. This language sets narrower limits than the former rule. First, the person must be 'acting as an attorney'. This limits application of the sub-section to those attorneys performing legal functions and legal tasks. Supervisory or managerial personnel are excluded; the attorney must also be acting 'in the proceeding.' Attorneys performing legal functions not connected with a particular proceeding are excluded form coverage; only those attorneys who work directly on a case are covered by the language." 6 Michigan Court Rules Annotated, 1978 Pocket Parts, Page 75. Emphasis added.

Therefore it appears that GCR 912(5) disqualifies a judge from hearing a case or proceeding where the judge is related within the third degree (civil law) or consanguinity or affinity to any person appearing before the judge as a lawyer. It does not require disqualification of a judge where a relative within the third degree is a member or lawyer employee of the same law firm as an (unrelated) lawyer appearing before the judge, provided that the judge's relative does not work directly on the case.

Since GCR 912 does not speak to the question of legal assistants or other paralegals in like relationship to a judge, disqualification is not required.

Nothing in the ethics rules or any statute or court rule per se prohibits an unrelated lawyer from appearing before a judge whose son, daughter or other relative is a member of or associated with the same law firm. However, an impartial judiciary - in both fact and appearance - is essential to our system of justice. When a judge has a special relationship to a litigant (and by extension to anyone representing a litigant), the judge's impartiality is subject to scrutiny. On a close question might the judge tip the scales of justice in favor of the side with which he or she has the special relationship? Or might the judge lean backward so far to avoid even the appearance of doing so that he or she treats the party in question unfairly?

Such speculation should be removed from the proceeding. MCJC 3 requires a judge to raise the issue of disqualification whenever the judge has cause to believe that the judge may be disqualified because of partiality, personal bias or prejudice, or any other reason. In the spirit of MCJC 3, then, the committee believes that a judge presiding over a case or proceeding where a relative within the third degree is a member of or is associated with the same law firm as a lawyer appearing before the judge should disclose the relationship to all parties and raise the issue of disqualification. The judge should recuse unless all parties having considered the issue, formally request the judge to continue with the case. In that event the judge may do so, provided the judge is not otherwise disqualified, and provided the relative in question does not work directly on the case.

Similarly, a lawyer in whose law firm a relative of the judge within the third degree is working should disclose the fact of that relationship to the court and the other parties. Legal assistants or other paralegals, though not encompassed by GCR 912(5), should be regarded and dealt with in the same fashion as herein set forth with respect to lawyer-relatives of a judge.

 
     

 

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