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Ethics Opinion

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J-6

September 20, 1996

SYLLABUS

    The validity of ethics opinions issued prior to September 1, 1995, must be reevaluated in light of amendments to the rules governing judicial disqualification.

    A judge's disqualification under Michigan Rules of Court may be remitted by the parties in any circumstance except personal bias or prejudice concerning a party.

    References: MCJC 3C, 3D; MCR 2.003(B) and (D). The following opinions are affirmed: J-5; R-14, R-15; JI-6, JI-24, JI-28, JI-29, JI-31, JI-34, JI-35, JI-37, JI-43, JI-44, JI-50, JI-51, JI-57, JI-61, JI-62, JI-79, JI-86, JI-96, JI-97, JI-100; RI-1, RI-119, RI-121, RI-131, RI-166. The following opinions are distinguished: C-216, J-3, R-3; JI-39. The following opinions are affirmed in part and superseded in part: JI-23, JI-102. The following opinion is affirmed in part, distinguished in part, and superseded in part: J-4.

TEXT

The Committee has been asked to address the impact recent amendments to MCR 2.003, relating to judicial disqualification, may have on previous ethics opinions. The amendments were effective September 1, l995.

THE COURT RULE

Prior to September 1, 1995, MCR 2.003(B) provided that there were certain enumerated grounds when a judge could not impartially hear a case, and thereby, warranted a disqualification:

    "(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in which the judge

      "(1) is interested as a party;

      "(2) is personally biased or prejudiced for or against a party or attorney;

      "(3) has been consulted or employed as an attorney in the matter in controversy;

      "(4) was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years;

      "(5) is within the third degree (civil law) of consanguinity or affinity to a person acting as an attorney or within the sixth degree (civil law) to a party;

      "(6) or the judge's spouse or minor child owns a stock, bond, security, or other legal or equitable interest in a corporation which is a party, but this does not apply to

        "(a) investments in securities traded on a national securities exchange registered under the Securities Exchange Act of 1934, 15 USC 78a et seq.;

        "(b) shares in an investment company registered under the Investment Company Act of 1940, 15 USC 80a-1 et seq.;

        "(c) securities of a public utility holding company registered under the Public Utility Holding Company Act of 1935, 15 USC 79 et seq.;

      "(7) is disqualified merely because the judge's former law clerk is an attorney of record for a party in an action that is before the judge or is associated with a law firm representing a party in an action that is before the judge.

    "A judge is not disqualified merely because the judge's former law clerk is an attorney of record for a party in an action that is before the judge or is associated with a law firm representing a party in an action that is before the judge."

The Michigan Supreme Court amended MCR 2.003 in significant ways, effective September 1, 1995. The current rule states:

    "(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case, including but not limited to instances in which:

      "(l) The judge is personally biased or prejudiced for or against a party or attorney.

      "(2) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.

      "(3) The judge has been consulted or employed as an attorney in the matter in controversy.

      "(4) The judge was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years.

      "(5) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding.

      "(6) The judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

        "(a) is a party to the proceeding, or an officer, director or trustee of a party;

        "(b) is acting as a lawyer in the proceeding;

        "(c) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;

        "(d) is to the judge's knowledge likely to be a material witness in the proceeding.

    "A judge is not disqualified merely because the judge's former law clerk is an attorney of record for a party in an action that is before the judge or is associated with a law firm representing a party in an action that is before the judge."

The 1995 amendments made four significant changes.

First, MCR 2.003(B)(2) is completely new, and is modeled after the ABA Model Code of Judicial Conduct, Sec 3E(1)(a). It appears consistent with Cramptom v. Department of State, 395 Mich 326; 235 NW2d 343 (l975), which is frequently cited by parties seeking disqualification even though it did not involve the disqualification of a judge. The case involved the disqualification of administration board members, usually police officers, from hearing driver's license appeals. Lebow, Michael J., "Judicial Disqualifications for Bias or Prejudice," Vol 72 No 7, MBJ 684, 685 (Jul 1993). In recommending the provision to the Michigan Supreme Court, the State Bar commentary provided:

    "[The rules] describe instances in which a judge has "participated personally and substantially" in a matter outside of the judicial role. Such prior participation is considered sufficient to raise the question of a judge's personal bias in a matter, and should not be left for a party or party counsel to prove the judge's actual bias. This is the same standard applied when public officials and employees handle matters in private practice, MRPC 1.11 and 1.12; when lawyers change firms, MRPC 1.9 and 1.10; when former prosecutors become judges; and when judges negotiate private employment in anticipation of leaving the bench . . . ."

Second, the provision for disqualification for fiduciary and economic interests has been moved from MCR 2.003(B)(6) to MCR 2.003(B)(5). The provision is only triggered when the judge knows of the financial interest. The scope has been expanded beyond the judge's spouse and minor child, to also include the judge's parents and anyone residing in the judge's household. The scope has also been expanded beyond an economic or equitable interest in the party, to also include any economic interest in the subject matter in controversy. The scope has also been changed to apply to any more than di minimis interest that could be substantially affected by the proceeding.

Third, the provision for disqualification for degrees of kinship has been moved from MCR 2.003(B)(5) to MCR 2.003(B)(6). The former provision required disqualification of the judge if a party was within six degrees of kinship or an advocate was within three degrees of kinship to the judge. The amended provision addresses only three degrees of kinship. It expands the scope, however, beyond parties and advocates to also include officers, directors and trustees of parties, material witnesses, and those whose interests could be substantially affected by the proceedings.

Fourth, the court rule was further amended to add section (D), which provides for remittal of disqualification as follows:

    "(D) Remittal of Disqualification. If it appears that there may be grounds for disqualification, the judge may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If, following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties without participation by the judge, all agree that the judge should notbe disqualified, and the judge is then willing to participate, the judge may participate in the proceedings. The agreement shall be in writing or placed on the record."

The process speaks for itself, and states that this procedure may be utilized in all cases of possible disqualification except for grounds as found in MCR 2.003(B)(1), to wit: personal bias or prejudice for or against a party or attorney.

MICHIGAN ETHICS OPINIONS

The State Bar of Michigan has published a collection of ethics opinions for judges and lawyers in the book, Michigan Ethics Opinions. It includes the following:

    "Judicial Tenure Commission Advisory Opinions

      "From 1968 through 1988, the Judicial Tenure Commission, pursuant to MCR Subchapter 9.200, rendered 111 advisory opinions which were compiled and published in the 1987 Annual Report of the Judicial Tenure Commission. At the direction of the Michigan Supreme Court, the Judicial Tenure Commission ceased issuing advisory opinions in October, 1988. The opinions are designated as A/O.

    "Formal Judicial and Lawyer Ethics Opinions

      "Formal ethics opinions are prepared by a subcommittee and submitted to the State Bar Board of Commissioners. A formal ethics opinion adopted by the State Bar Board of Commissioners reflects the policy of the State Bar. Formal ethics opinions deal with matters of general and substantial interest to the public, address situations which affect a significant number of members of the Bar, or reverse prior formal opinions. The opinions are designated as J for formal opinions interpreting the Michigan Code of Judicial Conduct(MCJC), and R for formal opinions interpreting the Michigan Rules of Professional Conduct (MRPC).

    "Informal Judicial and Lawyer Ethics Opinions

      "An informal ethics opinion is prepared and issued by a subcommittee after it has been circulated to subcommittee members and the Chairperson has resolved any conflicting views. Informal ethics opinions generally deal with situations of limited and individual interest or application. The opinions are designated as "JI" for informal opinions interpreting the Michigan Code of Judicial Conduct (MCJC), and RI for informal opinions interpreting the Michigan Rules of Professional Conduct (MRPC)."

The publication also contains formal opinions released prior to October l, l988, and designated as "C." The amendment to MCR 2.003 necessitates review of these prior ethics opinions as discussed hereafter.

DUTY TO RAISE THE ISSUE OF DISQUALIFICATION

MCR 2.003(A) remains unchanged and, therefore, any party or the judge may raise the issue of a judge' disqualification by motion. See also, MCJC 3C, "a judge should raise the issue of disqualification whenever the judge has cause to believe the grounds for disqualification may exist under MCR 2.003(B)." Formal opinions interpreting the Michigan Rules of Professional Conduct are designated "R" in the publication Michigan Ethics Opinions.

In R-14, July 24, l992, the Committee concluded that the judge's personal lawyer could in certain cases represent clients before the judge, provided that everyone consented after consultation. MRPC 1.2, 1.4, 1.7. The opinion, in relation to MCR 2.003, also held that "the lawyer must disclose the judicial representation to opposing parties, allowing them an opportunity to seek recusal of the judge [or disqualification of the lawyer]." The former court rule, MCR 2.003(B)(2), is identical to the court rule as amended, MCR 2.003(B)(1). The rationale of R-14 has not changed. Therefore, MCR 2.003(D) would permit the opposing party to reach an agreement with the other party to allow the judge to hear the case despite the possible grounds for disqualification. The judge would have to carefully weigh the provisions of MCR 2.003 before agreeing to participate in the proceedings.

IMPARTIALITY AND BIAS

A number of opinions have been rendered by the committee regarding issues of impartiality and bias. MCR 2.003(B) as amended provides specific enumerated grounds for disqualification. How do the amendments affect the committee's former opinions?

In J-5 the issue was whether all of the county's circuit judges would be disqualified from hearing cases involving a law firm retained to represent them in an action before the federal court. Once again, the question of the appearance of impropriety was raised. The judges certainly have the obligation to disclose the relationship to all other parties. The committee concluded then that a judge should consider the appearance of impropriety as well as other factors in deciding a motion to recuse. The advent of MCR 2.003(D) would permit the judge to retain the case provided the parties consented after the disclosure. The opinion is affirmed.

In JI-29 a judge asked about disqualification in domestic relations matters where an advocate had been appointed by the judge to serve as a part-time circuit court domestic relations referee. Aside from the ethical issues facing the appointee, the committee opined that, pursuant to MCJC 3C, the judge would be required to raise the issue of disqualification pursuant to MCR 2.003(B). JI-29 holds that a policy requiring judicial disqualification because an appointee appears before the judge is not justified, since

    "[s]uch a rule would burden the judicial system, particularly in a one-judge circuit. Further, the statute which creates the judge's appointive authority specifically authorizes appointment of a private practitioner, MCL 552.507."

Such policy considerations are still valid. In light of MCR 2.003(D), absent circumstances which demonstrate bias, a judge may still agree to participate in the proceedings if the parties consent after the disclosure of this information. The opinion is affirmed.

In JI-34 the committee subsequently addressed disqualification issues of a judge who presided over criminal matters initiated or pending while the judge served as the chief prosecutor. Disqualification was required "where the judge is personally biased or prejudiced for or against a party or lawyer or where the judge has actual knowledge about a criminal case because the judge while a prosecutor had been consulted or employed as counsel." The circumstances of this scenario invokes mandatory disqualification on the basis of MCR 2.003(B)(2), and perhaps MCR 2.003(B)(3). However, absent personal bias or prejudice, the procedure found in MCR 2.003(D) could be utilized. It is not likely that a defendant would waive disqualification, but he/she could. If the defendant did, the judge could consider participating in the proceedings. The opinion is affirmed.

In JI-35, an incumbent judge who lost his bid for re-election sought the guidance of the committee in negotiating for employment upon leaving judicial office. The committee stated that "the judge should automatically recuse to avoid accusations that the judgment or the judge's position has been maneuvered for personal gain of the judge or the prospective employer." To hold otherwise would render a long-serving judge unemployable. Nonetheless, the committee further stated the judge should refrain from employment negotiations with a lawyer or law firm that has pending matters before the judge. It is interesting to note that the committee further stated that:

    "If the judge does not join a particular firm following employment discussions with the firm, the judge should for a reasonable time disclose to all parties the proposed professional relationship, and recuse unless asked to proceed." Emphasis added.

The court rule as amended specifically provides for this process. Thus, in this fashion, MCR 2.003(D) codifies JI-35, and the opinion is affirmed.

Ethics opinion JI-39 concluded that a judge who is a defendant in a legal malpractice action may not preside over any matter in which a member of the judge's former law firm, or a member of the law firm representing the judge appears, until the malpractice action is resolved. The committee further reasoned that the disqualification was "absolute" despite a mutual agreement by all parties to permit the judge to preside over the case. With regard to the former firm, the committee reasoned that there "is an extension of the shared ethics and malpractice responsibility" and that "this continuation automatically disqualifies the judge from hearing and presiding on matters in which the judge's former law firm is involved, until such time as the malpractice action filed against the judge and the law firm is completely resolved." Similarly, the committee reasoned that "only in unusual circumstances would a judge's impartiality not be subject to reasonable question, when a lawyer appearing before the judge in behalf of a client is at the same time representing the judge in litigation pending before another court. This would be true whether the lawyer was representing the judge in a personal matter, or a matter pertaining to the judge's official position or conduct."

Although MCR 2.003(D) does not allow remittal in cases of bias for or against a party, it does allow remittal in cases of bias for or against an advocate. The duty to disclose the relationship remains, however, the disqualification is not absolute absent actual bias or prejudice. Therefore, JI-39 is distinguished.

The committee addressed the disqualification of a Court of Appeals judge in opinion JI-43. The judge was a defendant in civil litigation arising from certain real estate transactions while the judge was a general partner in a real estate development. The issue was whether the judge should recuse when the judge's lawyer or the opposing lawyer appeared before the judge on unrelated matters. The committee found no extension of shared ethics and malpractice liability in these facts, and thus the reasoning of JI-39 did not apply. The committee concluded that absent actual bias, the judge was not per se disqualified, however, since reassignment was readily available, the judge should recuse while the judge's personal case was pending. The same would then hold true if law firm associates of either advocate appeared before the judge. With the proviso that any disqualification may be remitted under MCR 2.003(D), JI-43 is affirmed.

In JI-5l a judge who served on the board of directors for a nonprofit legal aid organization was required to disclose the relationship when a lawyer from the organization appeared before the judge. Once again the committee found no grounds for a per se disqualification. This again assumes that the judge is not personally biased or prejudiced for or against the organization's lawyers. If challenged, the parties could avail themselves of MCR 2.003(D), and the judge could proceed accordingly. JI-51 is affirmed.

On a rare occasion, a judge may appear as a witness before a colleague of the same bench. Such was the case in JI-57, in which defense counsel sought the testimony of a judge who conducted the marriage ceremony of the plaintiff, to determine if the judge noted any deficiency in the plaintiff's competency. The judge was a colleague of the judge assigned to the case. Would the presiding judge be swayed by the fact that a particular witness was a judicial colleague?The committee concluded that if the presiding judge was concerned about the appearance of bias, the judge should so advise the parties, and recuse unless asked to proceed. This former opinion is still acceptable in light of MCR 2.003(D), and JI-57 is affirmed.

A variation of the preceding opinion was presented in JI-6l, in which a district judge questioned whether recusal was required if a witness was both a part-time police officer and a full-time probation officer of the district court. The committee reasoned that "if there is no appearance of bias in the judge regularly hearing the sentencing recommendations of the probation officer, there should be no increased likelihood of bias when the police officer testifies."

Furthermore, it was concluded that "defense counsel has an opportunity to impeach" the witness, and therefore, "there is less likelihood of abuse in the criminal case than in the sentencing stage." In the end, the committee once again opined that absent actual bias, the judge need not recuse. This opinion remains intact with or without the application of MCR 2.003(D), and is affirmed.

In JI-62 the question posed addressed the propriety of the employer of a judge's spouse appearing as a witness in mental health proceedings. MCR 2.003(B)(6)(d) provides that the judge is disqualified when the judge's spouse is likely to be a material witness. On such occasions, the judge should disclose the relationship and is recused unless asked to proceed via MCR 2.003(D). The mere appearance of the spouse's employer or colleagues still does not create a basis for disqualification. Therefore, JI-62 is affirmed.

In JI-79 the committee concluded that a judge was not automatically disqualified from presiding in a matter in which a member of the judge's re-election campaign committee appears as an advocate for a party. MCJC 2 requires a judge to avoid even the appearance of impropriety in all activities, and therefore there is an obligation to disclose the relationship. See Shaman, Lubet, and Alfini, Judicial Conduct and Ethics, The Michie Company, l992, pp. 274-275. Understandably, this situation is potentially burdensome on single judge courts. The committee stated that,

    "Lawyers as well as all members of the public should have a sincere and significant interest in the individuals whorepresent them on the bench. An inflexible rule of automatic recusal would discourage lawyers from participating in the election of qualified individuals to the bench at the expense of disqualifying the judge in unrelated matters."

The committee suggested that the better practice would be to "liberally consider requests for recusal" in such cases. The advent of MCR 2.003(D) would now permit another alternative. If the petitioning party did not wish to consider remittal of the disqualification, it is still the better decision to follow the opinion presented in JI-79, and it is affirmed.

Once upon a time, there was a circuit judge, a district court magistrate, and a deputy sheriff, who co-owned recreational real estate property. In JI-86 the committee noted that MCJC 5C provides that a judge should refrain from certain financial and business dealings that would reflect adversely on the judge's impartiality. If the instances of recusal become too frequent, divestiture of the financial interests is required by MCJC 5C(3). Under the circumstances where the deputy sheriff might appear as a witness in either court, the committee concluded that "a judge's personal friendship and financial ties with a witness is not, in itself, sufficient to require recusal," and furthermore:

    "[A] circuit judge is not per se disqualified from reviewing decisions of a district court magistrate solely on the basis of their common ownership of land and building. There is no presumption that the judge's friendship or financial ties with the magistrate has created actual bias or the appearance of bias requiring recusal. The result should be no different in cases where the circuit judge, deputy sheriff and magistrate are all involved in the same proceeding unrelated to their common investment."

The obligation to disclose the relationship exists pursuant to MCJC 3C. MCR 2.003(D) is applicable, and hence, JI-86 is affirmed.

RI-121 addresses the participation of four lawyers in the processing of attorney grievance matters where one of the lawyers is the supervising attorney for the remaining three lawyers in their capacity as corporate attorneys for a large metropolitan county. The supervising attorney is a member of the Attorney Grievance Commission, the prosecutorial arm of the Michigan Supreme Court pursuant to MCR 9.108(A). The other three attorneys are voluntary hearing panelists for the Attorney Discipline Board, the adjudicative branch of the Michigan Supreme Court pursuant to MCR 9.110. The inquiry focused on the appearance of impropriety and/or the problems of inadvertent "influence," or "contamination" arising from the mutual employment as corporate counsel.

PERSONAL BIAS FOR OR AGAINST A PARTY OR ATTORNEY

Personal bias for or against a party or attorney is now found in MCR 2.003 (B)(1). Personal bias for or against a party may not be remitted; personal bias for or against an attorney may be remitted. This particular ground for disqualification was previously cited as MCR 2.003(B)(2). Several opinions have been issued regarding this provision. Opinions C-228, JI-29, JI-34, JI-5l, and RI-121 have already been discussed. The remaining opinions will now be reviewed.

Ethics opinion RI-131 addressed whether a lawyer could continue to serve as a hearing panelist for the Attorney Discipline Board pursuant to MCR 9.115, while the subject of a formal complaint approved by the Attorney Grievance Commission, or while the subject of an investigation by the Grievance Administrator. The committee noted that a member of the hearing panel who was the subject of a formal complaint might be perceived to be biased or partial in one of two ways. The panelist might be lenient to another lawyer respondent who was also charged with misconduct, or the panelist might be seen as favoring the prosecution in an effort to obtain an advantage in the panelist's own case. The committee stopped short of concluding that recusal was absolute. To clarify the opinion, applying MCR 2.003 as amended, if the panelist is personally biased or prejudiced for one party or the other, the disqualification is mandatory and is not affected by MCR 2.003(D).

If the panelist is the subject of an investigation but not a formal complaint, the panelist must either disclose this fact to the parties, or, if the panelist did not wish to disclose, voluntarily recuse "on the basis that the panelist could not hear the case impartially." If the panelist chooses the first option, disqualification could be remitted pursuant to MCR 2.003(D). The opinion is affirmed.

Opinion J-3 affects the service of retired judges by assignment who may also serve as "director, officer, manager, advisor, or employee of any business." Sitting judges are prohibited from serving in any such capacity pursuant to MCJC 5C(2). This opinion states that:

    "When assigned judicial duties, the visiting or retired judge should take a leave of absence from the business, receive no compensation from the business during the period of time in which the judge is adjudicating matters, and of course, recuse from hearing matters that are related to the interests of the outside business."

MCJC 5C still applies, but MCR 2.003(B)(6)(a) now requires disqualification when the judge is an officer, director or trustee of a party. The disqualification may be remitted. The opinion is distinguished.

Opinion J-4 addressed a number of other grounds for disqualification which will be addressed in subsequent sections of this article, but is affirmed in the following respect. Recusal is still required in situations where the judge formerly served as a city commissioner and subsequently faces matters which came before the commission, or where the judge had previously "participated personally and substantially in the matters" reaching fruition after the judge's resignation.

If a judge serves as a member of the attorney discipline board hearing panel, is the judge automatically disqualified when the respondent-attorney appears before the judge? In JI-24 the Committee concluded that disqualification was not automatic. However, the committee noted the case of People v. Lowenstein, 118 Mich App 475, 482-483 (1982), which cited an Oklahoma case holding:

    "Even though a judge personally believes himself to beunprejudiced, unbiased and impartial, he should nevertheless certify his disqualification where there are circumstances of such a nature to cause doubt as to his partiality, bias or prejudice."

The committee reasoned that even if the judge did recuse when the respondent appears as advocate in unrelated matters pending before the judge, the recusal is personal to the circumstances of the respondent and does not reach appearances by the respondent's law firm colleagues. The opinion is affirmed.

Opinion JI-28 is closely related to J-3 in that it addressed retired judges. The State Court Administrator sought this opinion in response to a retired Court of Appeals judge who intended to accept judicial assignments while also accepting appointments as a neutral mediator for certain trial courts. MCJC 5E prohibits a full-time judge from acting as an arbitrator or mediator, except in the performance of judicial duties. The committee reasoned that a retired judge need not refrain from serving as a mediator or arbitrator, provided that this service is not contemporaneous with the period of any judicial assignment, and the service on prior mediation or arbitration panels is:

    ". . . not so identified with one party, organization or interest group as to reflect adversely on the judge'simpartiality or to raise questions of bias or theappearance of impropriety."

Whether a judge is automatically disqualified from matters in which the judge had participated as a mediator or arbitrator depends upon the particular forum. See, RI-265, "a lawyer who has served as a mediator under MCR 2.403 may not later serve as an arbitrator in an arbitration proceeding between the same parties concerning the matter which was mediated," and "whether a lawyer who has served as a mediator in a private mediation setting may serve as an arbitrator in a proceedings between the same parties concerning the matter which was mediated depends upon the rules of the private mediation forum and the arbitration forum." The opinion is affirmed.

Many judges, especially those in the less populated counties, are bound to face litigants and lawyers who are personal acquaintances. Likewise, judges are likely to occasionally encounter a litigant or an attorney who have leveled derogatory remarks against the judge. In either situation, according to opinion JI-44, recusal is not, and should not be, automatic. A judge concerned about the appearance of bias should advise the parties and attorneys and recuse unless asked to proceed. This is exactly the procedure now available by MCR 2.003(D).

If the judge under the foregoing scenarios grants a motion to recuse, or refuses to participate even where the parties remit the disqualification, the judge should specifically state the reasons. This will permit the chief judge, or any other judge selected to review the decision to appropriately decide the matter de novo pursuant to MCR 2.003(C). The committee affirms JI-44.

A frequent criticism or suspicion of indigent litigants is that court-appointed attorneys are not as capable as privately retained counsel, or that counsel's loyalty is to the appointing judge rather than to the client. There is an array of contractual arrangements between courts and attorneys who accept court appointments. In JI-50 a probate judge questioned the ethical implications of hiring a lawyer as a county employee to represent indigent youth in delinquency cases, and indigent parents or children in child protection proceedings. The committee recognized that the lawyer would be completely dependent on the judge for any earned income. JI-29. MRPC 1.7(b) and 1.8(f) obligates the attorney to not permit the judge to affect the level of advocacy for the indigent client. MCJC 1 and 3 obligate the judge to uphold the integrity and independence of the judiciary and to perform the duties of judicial office impartially. The committee recognized that with due care, the lawyer could be hired as a county employee, but that:

    ". . . no one will envy the delicate task a judge and counsel must undertake in walking this professional tightrope."

MCR 2.003(A) continues to permit a party or the judge to raise the issue of disqualification. A judge's appointment of counsel, without more, is not grounds for disqualification. If a particular case presents aggravating circumstances in addition to the appointment of counsel under the facts set forth in the opinion, the parties should be counseled accordingly.

Opinions RI-52 and JI-23 impose a reciprocal obligation on lawyers and judges a presiding judge's campaign opponent appears as advocate. Opinion JI-96 modifies this stand by concluding that disqualification is not per se required in uncontested matters in which one of the advocates is an announced candidate for the presiding judge's seat. Citing an advisory opinion of the Judicial Tenure Commission, A/O 103, the committee noted that no distinction was made between adversarial proceedings and non-adversarial matters. The committee suggested that the judge disclose the lawyer's candidacy and await a motion to recuse if the parties so choose. The opinion suggests that "in the absence of a reasonable good faith challenge to the judge's impartiality," the judge could preside over uncontested matters or sign stipulated orders. Since the opinions are based upon bias for or against an advocate, not a party, the remittal procedures of MCR 2.003(D) are available. To the extent that JI-23 requires recusal, the opinion is superseded. Opinion JI-96 is affirmed.

We have previously addressed the appearance of a lawyer and the lawyer's law firm colleagues in matters before a judge who is also a client of the law firm. JI-39, J-5, and R-14. We now turn our attention to JI-102 which reviews the ethical implications of a lawyer appearing before an administrative hearing officer whose family member was a former client of the lawyer. The committee recognized that given these facts, a person could deduce that the judge would be personally biased or prejudiced for or against that lawyer. The committee concluded the following:

  1. The family relationship, in and of itself, is not sufficient to require disclosure or disqualification.
  2. If the representation of the family member is concurrent with the appearance before the judicial officer, disclosure is required.
  3. If the judge's personal ethics or financial interest are directly at stake, disqualification is required.

With regard to situations 1 and 2, the opinion is affirmed. With regard to situation 3, the disqualification may be remitted under MCR 2.003(D).

Judges have varying experiences and relationships with their respective local boards of county commissioners. On at least one occasion, a lawyer was elected as chairperson of a board of commissioners which oversees the budget and related issues of court operations. Aside from the ethical implications for the lawyer, R-15 addressed issues of judicial disqualification. The committee was cognizant of the fact that parties might question the independence of the judiciary as being threatened by "toadyism," and suggested that each matter be handled on a case by case basis since automatic disqualification was not warranted. A second fact complicated this inquiry, to wit: the lawyer commissioner "has been an opposing party in litigation against the circuit court judge," and had been sanctioned for contempt. Therefore, at the very least, the question of the appearance of bias or prejudice must be considered. The committee quoted the Lowenstein case:

    "No human being (even a judge) is completely prejudicial free. But our judicial system requires judges. Therefore, we make allowances. Under normal circumstances, we will assume (absent evidence to the contrary) that the judge is free enough from bias to make a tolerably nonpartisan decision." People v. Lowenstein, 118 Mich App 475, 481-482 (1982).

Hence, if the lawyer commissioner believes the presiding judge is biased, the lawyer may seek disqualification, or reconsider whether or not to remain on the case. The opinion is affirmed.

PREVIOUSLY CONSULTED OR EMPLOYED AS ATTORNEY IN THE MATTER

This ground for disqualification is still cited as MCR 2.003(B)(3). The only change is the addition of the words, "the judge," at the beginning of the provision. A few opinions have been issued on this topic, including JI-34 which has already been discussed.

In JI-97, the committee concluded that a part-time magistrate would be disqualified from any matters being handled by a member of the magistrate's private law firm, and that at no time could the magistrate practice law in that court as it is precluded by statute and the Michigan Code of Judicial Conduct. MCL 600.8525; MSA 27A.8525; MCJC 5F. Furthermore, the magistrate would be disqualified from any matter in which the magistrate participated personally and substantially as a lawyer. MRPC 1.11(c); MCR 2.003(B)(3).In accord, RI-1.

Under the current language of MCR 2.003(B)(4), a part-time magistrate would be disqualified when a member of the magistrate's law firm appears, so JI-97 and RI-1 are affirmed. The disqualification could be remitted pursuant to MCR 2.003(D).

RELATIONSHIP TO PARTY OR FIRM WITHIN PRECEDING TWO YEARS

This ground for disqualification remains cited as MCR 2.003(B)(4), with the only difference being the addition of the words, "the judge" at the beginning of the provision. Several opinions have been rendered in the past, including RI-1; J-4; JI-34, JI-39, and JI-97, as previously discussed. Since the applicable rule has not changed, the only affect the 1995 amendments have on these opinions is to allow remitter. J-4 bears another look along with a quick review of a few others.

A portion of J-4 involved a lawyer who became a partner in a law firm that divided into two firms shortly before the lawyer was elected to the circuit court bench. Is the judge disqualified from hearing matters involving either law firm for a period of two years? The purpose of the two-year disqualification rule is to avoid requiring a party to prove actual bias or prejudice where the judge had been personally and professionally associated with a law firm. The committee noted that MCJC 3D allowed for the remittal of disqualification as provided by court rule, but that no court rule then existed and prior to September 1, l995, it appeared that all situations arising under MCR 2.003 mandated disqualification.

If a former partner was no longer associated with the judge's former law firm, what is the outcome? The committee concluded that the relationship should be disclosed, MCJC 3C, and the judge should recuse unless the parties remit disqualification. This conclusion in J-4 is perfectly in line with the court rule as amended.

Does a bonus for work performed prior to taking judicial office extend the two year period of disqualification? In JI-37 the Committee concluded that it did not. There is no basis to change this opinion, especially in light of the review of J-4.

In JI-100 the Committee considered the ramifications of a former client of the judge who now appears before the judge but is represented by a totally different law firm. The committee applied MCR 2.003(B)(4), "representing a party," which was not changed by the 1995 amendments. The opinion is affirmed.

DEGREES OF KINSHIP—EQUITABLE INTEREST AFFECTED BY PROCEEDINGS—WITNESS IS KIN

Similar grounds for disqualification were previously cited as MCR 2.003(B)(5), and (B)(6) respectively. They have been combined and modified, and are now found in MCR 2.003(B)(6). The court rule as amended now provides for disqualification if:

    "(6)The judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

      "(a) is a party to the proceeding, or an officer, director or trustee of a party;

      "(b) is acting as a lawyer in the proceeding;

      "(c) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;

      "(d) is to the judge's knowledge likely to be a material witness in the proceeding." Emphasis added.

Opinion J-4 addressed whether a judge is disqualified from presiding over cases of law firms employing the judge's relative. The Committee concluded that the disqualification would not be automatic, citing the provisions of MRPC l.8(i), and prior opinions. C-216; R-3. However, the judge was obligated to disclose the relationship, and the law firm was obligated to "disclose whether the judge's relative [had] participated personally and substantially in the matter." The opinion went on to state that the judge could proceed if the parties consented after disclosure.

MCR 2.003(B)(6) now requires recusal if someone within the third degree of kinship to the judge is known to have an interest that could be substantially affected by the proceeding. It could be argued that a relative of the judge who is a partner or shareholder in the law firm, and thus whose income may be affected by the success of the advocacy in the matter, has such an interest triggering disqualification. The result is the same as under C-216, R-3 and J-4, but the underlying authority for the disqualification is more precise, and to that extent the opinions are distinguished.

J-4 also addressed the issue of disqualification where the judge has a financial interest with certain attorneys in a real estate venture. MCJC 5C(2) allows a judge to participate in certain investments, including real estate provided the judge is not a director or manager. The Committee reasoned:

    "We believe that automatic disqualification for every continuing financial interest, although traditional, is not required under the current Code or court rules. MCR 2.003(B)(6) disqualifies a judge when a member of the judge's immediate family has more than a de minimis economic interest in a party; clearly, then the judge's economic connection to an advocate must be more than de minimis before automatic disqualification is required. Where the agreement for the financial interest is a contract with the amount due the judge established as a set amount, not subject to contingency or discretion of the judge or the payor, and neither the amount nor the terms of payment are in dispute, the fact of the agreement to pay the judge is not presumptively prejudicial. Regular, periodic, or one-time disbursements to the judge from a lawyer or law firm are not prejudicial unless the matter over which the judge presides is the matter which affects the disbursement."

Similarly, JI-6 concluded that a landlord judge must disclose that an advocate is the judge's tenant and recuse unless asked to proceed. The Michigan Supreme Court itself has endorsed this approach in People v. Perkins, 193 Mich App 209 (1992). The opinions are affirmed.

May a judge review the decisions of the judge's spouse in their capacity as a judge of a lower court? Opinion JI-31 addresses this question and answers it in the negative, but the decision was not based upon MCR 2.003. Recusal allows the circuit judge to avoid the appearance of impropriety and the appearance that a family relationship has influenced judicial conduct. MCJC 2; MCJC 2C. See also, Franck, Michael "A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities," commentary reported in Vol 69 No 3, MBJ 234-235 (Mar 1990). This appears to be a case where the Lowenstein rule would apply, in that the "circumstances [are] of such a nature to cause doubt as to . . . partiality, bias or prejudice."

The opinion also addresses a situation where a circuit judge contemplates appointing the judge's spouse as a Friend of the Court referee. The committee relied upon MCJC 3B for the ethical policy that a judge should not create a situation which increases the number of cases in which the judge may be disqualified. This result is not affected by the 1995 amendments, and the opinion is affirmed.

In R-3 it is concluded that a judge should not preside over a case in which the judge's spouse appears as a lawyer for one of the litigants. The committee extended this to lawyers who are dating and/or cohabitating with the judge. A second inquiry addressed the propriety of the judge presiding over a case when the spouse's law firm appears on behalf of a litigant. The judge is directed to disclose the relationship and recuse unless the parties request that the judge proceed. This result is not affected by the 1995 amendments, and on this issue the opinion is affirmed.

RI-119 responded to an inquiry from the Attorney Discipline Board in light of the fact that a hearing panelist was related to an advocate within the third degree of consanguinity. MCR 9.115(F)(2)(a) explicitly states that a motion to disqualify a hearing panelist shall be decided under the guidelines of MCR 2.003. It is clear that a hearing panelist is disqualified from any proceedings in which the hearing officer's close relative is directly involved. This result is not affected by the 1995 amendments, and the opinion is affirmed.

CONCLUSION

Prior to September 1, 1995, the committee has opined that in certain situations other than actual bias or prejudice, parties could remit disqualification after being informed of a possible ground for disqualification. It is clear that MCR 2.003(D) now specifically provides a procedure for doing so. It is equally clear that the final decision rests with the presiding judge who must thereafter agree to participate in the proceedings.

 
     

 

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