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Ethics Opinion

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JI-24

May 17, 1990

SYLLABUS

    A judge may serve as a member of an attorney discipline board hearing panel and participate in a disciplinary proceeding against a lawyer.

    A judge is not automatically disqualified from presiding in a matter in which a party was a respondent in a disciplinary proceeding in which the judge served as a member of the attorney discipline board hearing panel, or from presiding in a matter in which a lawyer for a party is a member of the disciplinary respondent's law firm.

    References: MCJC 2, 4A; MCR 2.003(B), 9.105, 9.202; In re Murchinson, 349 US 133, 75 S Ct 623, 99 L Ed 942 (1955); People v. Elmore, 92 Mich App 678 (1979); People v. Lowenstein, 118 Mich App 475 (1982); Merritt v. Hunter, 575 P2d 623 (Okla 1978).

TEXT

A lawyer who serves as a member of an attorney discipline board hearing panel and participates in disciplinary proceedings against respondent lawyers has become a judge [hereinafter "judge"]. The judge asks whether the judge may continue to serve on the disciplinary board hearing panel, and if so, whether the judge must be disqualified from presiding in matters (a) where a respondent lawyer is counsel of record, or (b) where another lawyer in the firm of a respondent lawyer is counsel of record.

MCJC 4 explicitly allows judges to participate in a variety of organizations and activities devoted to the improvement of law, the legal system, and the administration of justice. "To the extent that his time permits, he is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law."

MCJC 2A provides that a judge should expect to be the subject of constant public scrutiny, and requires that a judge avoid all appearance of impropriety. A judge must adhere to restrictions on conduct that might be considered burdensome by the average citizen, but a judge is obligated to accept these limitations freely and willingly. MCJC 2B requires that a judge conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Generally MCJC 2 focuses on the need to promote public confidence in the impartiality of the judiciary and the need to avoid impropriety and the appearance of impropriety in all of the judge's activities.

When read together, we see no explicit prohibition or underlying philosophy which would require a lawyer to resign from the disciplinary board hearing panel when the lawyer becomes a judge. MCR 9.105 states the purpose of disciplinary proceedings as "protection of the public, the courts, and the legal profession." It would be hard to imagine an activity which would "improve the legal system and the administration of justice," MCJC 4, more than participation in the bar's self-regulatory boards and agencies. Participation in discipline proceedings can increase a judge's appreciation for the demands of law practice, and focus the judge's attention on checks and balances that the judge could apply in similar fact situations which come before the judge. We note that lawyers serve on the Judicial Tenure Commission, MCR 9.202(A), without suffering accusations of conflicts of interest or impropriety. We see nothing per se improper with a judge serving on lawyer disciplinary panels.

MCR 2.003(B) provides:

    "(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, . . . ."

The ground for disqualification most closely related to this inquiry is MCR 2.003(B)(2), that the judge may be personally biased or prejudiced for or against a party or a party's lawyer. Disqualification under this rule generally requires a showing of actual bias or prejudice, People v. Elmore, 92 Mich App 678 (1979); although there are situations where "appearance of impropriety" may require disqualification even though no actual bias exists, People v. Lowenstein, 118 Mich App 475, 482-483 (1982). In Lowenstein the court cited Merritt v. Hunter, 575 P2d 623, 624 (Okla 1978) with favor:

    "[E]ven though a judge personally believes himself to be unprejudiced, 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."

In In re Murchinson, 349 US 133, 99 L Ed 942, 75 S Ct 623 (1955), the Supreme Court stated:

    "Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its highest function in the best way 'justice must satisfy the appearance of justice.'" 349 US at 946.

A lawyer may appear as a party in a matter before a judge, and later appear before the same judge as advocate in an unrelated matter, without raising the specter of bias or prejudice of the judge, regardless of how the matter brought by the lawyer as a party was resolved. Similarly, legal malpractice actions brought against lawyers are tried before judges before whom the lawyer defendant may appear in unrelated matters as an advocate. We see no reason for a judge to be automatically disqualified from presiding over a later matter in which the respondent lawyer is a party.

In the absence of facts which would indicate a personal bias of the judge, we see no reason for an automatic disqualification of a judge from hearing a matter brought by a lawyer whose disciplinary matter the judge also heard.

Similar considerations are involved when other members of the respondent's law firm appear before the judge. If the judge would not be disqualified from presiding in a matter where the respondent lawyer is attorney of record, the judge would not be disqualified from hearing a matter brought by another lawyer in the respondent's firm. Even if the judge would be disqualified were the respondent to appear as advocate, the appearance of prejudice or bias on the part of the judge is substantially removed where counsel in the matter is merely a member of the respondent's firm and not the attorney of record. The appearance of impropriety is not sufficiently high to warrant disqualification of the judge from cases in which other lawyers in the respondent's firm appear.

 
     

 

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