November 9, 1989
A judge may attend a deposition or hearing in order to provide moral support for a party who is within the third degree of consanguinity or affinity to the judge, or for other persons with whom the judge maintains a close familial relationship.
References: MCJC 2A, 2C; J-2; R-3; MCR 2.003(B)(5).
A sitting judge asks whether it is ethical for the judge to attend a deposition or hearing of a family member solely to offer support for the family member and not to participate in the matter.
MCJC 2A directs that a judge avoid all impropriety and the appearance of impropriety. MCJC 2C prohibits a judge from allowing the prestige of the judicial office to be used to advance the business interests of others.
As a public figure and member of the judicial branch of government, a judge's presence at a hearing or other proceeding will inevitably be noticed and an inference can be drawn that the judge is attempting to influence the outcome of the hearing or the conduct of the deposition. Whether or not this is true, an appearance of impropriety can arise from the judge's involvement in a legal matter to which the judge is neither party, nor witness, and otherwise has no legally cognizable interest requiring the judge's presence at the proceeding.
This inference should be balanced by the concern of the judge when a party in the proceeding is a member of the judge's family. The Committee can find no policy reason to prohibit a judge from being at the side of a child or a parent during occasions of stress or vulnerability, which are likely to be present if the family member is a party in a legal proceeding. Consistent with other rules and opinions on close familial relationships, the Committee believes the correct balance would allow a judge to attend when a party is within the third degree of consanguinity or affinity to the judge. See, MCR 2.003(B)(5); J-2.
The Committee also recognizes that certain persons who may not be related to the judge by law or blood nevertheless share a close familial relationship to the judge, such as cohabitants. See R-3.
Therefore, a judge is precluded from appearing at a proceeding to provided emotional support, unless the other person is related to the judge within the third degree of consanguinity or affinity, or is a person with whom the judge maintains a close familial relationship. See R-3.