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Ethics Opinion

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JI-29

October 30, 1990

SYLLABUS

    A judge may appoint a private practitioner in domestic relations law as part-time domestic relations referee. A lawyer who is a part-time referee may represent private clients in connection with a matter in which the lawyer participated as referee, provided that all parties consent; a part-time referee may not hear matters in which the referee participated as a lawyer; and a part-time referee is disqualified from hearing matters presented by the referee's law firm.

    A private practitioner may contract to serve as liaison attorney under the Federal Cooperative Reimbursement Program as long as while acting as liaison attorney the lawyer does not participate in a matter in which the lawyer was personally and substantially involved in private practice, and while acting as private practitioner the lawyer does not undertake a matter in which the lawyer participated personally and substantially as liaison attorney. The law firm of the private practitioner may not undertake the representation in a matter in which the lawyer is disqualified unless the lawyer is screened and the contracting agency is notified.

    A lawyer is not per se prohibited from serving as liaison attorney and as domestic relations referee, as long as the lawyer, the judge who appoints referees, and the board which contracts for the liaision attorney closely examine the practical consequences and potential conflicts of such dual service, and make provisions for those instances in which the lawyer may not serve one or another of the functions in a particular matter.

    Absent circumstances which show bias a judge is not per se disqualified from presiding over matters presented by an appointee.

    References: MCJC 2A, 3C; MRPC 1.7(b), 1.11, 1.12; MCR 2.003; RI-1, RI-4, RI-11; MCL 552.501, 552.507.

TEXT

A judge asks (1) whether the judge may appoint a lawyer in the private practice of domestic relations law to serve as a part-time circuit court domestic relations referee; (2) whether the judge may appoint a lawyer in the private practice of domestic relations law as liaison attorney in cooperation with the Cooperative Reimbursement Program; (3) whether the same private practitioner may be appointed to serve both positions simultaneously; and (4) whether a judge who appoints the part-time domestic relations referee is disqualified from presiding over private practice matters presented by the lawyer referee.

The lawyer's private practice and the appointed positions are in the same county; the lawyer would not serve as referee or as liaison attorney with respect to any of the lawyer's past or present representation matters.

I. The office of domestic relations referee is a quasi-judicial public office statutorily created pursuant to the Friend of the Court Act of 1982, Act 294, MCL 552.501; MSA 25.176(1) et seq. The question of whether a lawyer may serve as part-time domestic relations referee in the same county in which the lawyer practices was resolved in RI-1. In RI-1, citing to MRPC 1.11, 1.12 and MCR 2.003, the Committee opined:

    "A lawyer who is a part-time referee may represent clients in connection with a matter in which the lawyer participated as referee, provided that all parties consent;

    "A part-time referee may not hear matters in which the referee participated as a lawyer; and

    "A part-time referee is disqualified from hearing matters presented by the referee's law firm."

Thus, it is not inappropriate for a judge to appoint a domestic relations practitioner as part-time domestic relations referee, as long as the practitioner complies with RI-1 concerning the matters undertaken.

II. The position of liaison attorney is approved by the county board of commissioners and paid by the county. The liaison attorney performs various enforcement functions on behalf of the state department of social services as requested by the Federal Cooperative Reimbursement Program. Duties include initiating family support matters, URESA proceedings, and financial assistance pursuant to the Emancipation of Minors Act, against responsible parents on behalf of the government. The liaison attorney also initiates quasi-criminal proceedings concerning paternity. Court orders obtained through the efforts of the liaison attorney are enforced by the Friend of the Court, not by the liaison attorney.

May a domestic relations practitioner serve as liaison attorney? The duties of the liaison attorney are closely analogous to that of a prosecuting attorney. In fact, prosecuting attorneys are frequently selected to perform the functions of the liaison attorney under contract. In RI-4 the Committee discussed the circumstances under which a former assistant city attorney may represent a criminal defendant. Applying MRPC 1.11, the Committee held that the former assistant city attorney may represent a private client in a matter where the attorney participated personally and substantially as a government attorney, with the consent of the government agency. The Committee further held that the former government lawyer's law firm may represent the private client if the former government attorney is screened from the matter and the government agency is given notice.

While serving as liaison attorney, a lawyer is a "public officer" under MRPC 1.11, and is subject to that Rule's contraints regarding matters that may be undertaken as a liaison attorney. MRPC 1.11(c) prohibits the liaison attorney from "participating in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter." Since other persons clearly may be authorized to act upon proper delegation, the exception to the prohibition is not triggered.

While serving as a private practitioner, the lawyer is a former government lawyer, subject to the constraints of MRPC 1.11(a), and may not "represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, unless: (1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule." The appropriate government agency to give consent under this rule would be the contracting party, i.e., the county board.

Thus, as in RI-4, a private practitioner may contract to serve as liaison attorney as long as while acting as liaison attorney the lawyer does not participate in a matter in which the lawyer was personally and substantially involved in private practice, and while acting as private practitioner the lawyer does not undertake a matter in which the lawyer participated personally and substantially as liaison attorney. The law firm of the private practitioner may not undertake the representation in a matter in which the lawyer is disqualified unless the lawyer is screened and the government agency notified. "Personal and substantial participation" is explained more fully in RI-4 and RI-11.

III. May a practitioner hold both the position of liaison attorney and part-time domestic relations referee? It is already established that when the practitioner is acting as domestic relations referee or as liaison attorney, the practitioner is a "public official" subject to MRPC 1.11 regarding cases taken in private practice. What about a "public officer" undertaking cases in which the officer previously participated as a "public officer"?

A lawyer may not represent a client if the representation will be materially limited by the lawyer's responsibilities to another client, a third person or by the lawyer's own interests unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation, MRPC 1.7(b). Conflicts arise if a liaison attorney makes a preliminary determination to initiate proceedings on a matter, the merits of which will later come before the lawyer as referee. For example, a liaison attorney may request an ex parte family support order, and then be called upon to preside in a show cause hearing on support initiated by the Friend of the Court.

While serving as referee the lawyer is bound by the Michigan Code of Judicial Conduct. As a judicial officer, the referee must avoid even the appearance of impropriety and bias for or against a party, MCJC 2A, MCR 2.003. As a judicial officer, the referee must manage extrajudicial activities to minimize the number of cases in which the referee would be disqualified. To guarantee that disqualifying contacts are minimized may require a provision in the liaison attorney's contract which would give priority to referee duties when it is likely and foreseeable that actions of the liaison attorney would come before the referee. Not only might such a contract term be unacceptable to the contracting board, but the lawyer might not be able to identify such situations until client confidences and secrets have been exposed to the liaison or the liaison has already participated personally and substantially.

The Committee is not a fact finding body. Based upon the information furnished, the Committee is not prepared to opine that a lawyer is per se prohibited from serving as liaison attorney and as domestic relations referee. It is crucial, however, that the lawyer, the appointing judge, and the contracting board closely examine the practical consequences and potential conflicts of such dual service, and make provisions for those instances in which the lawyer may not serve one or another of the functions in a particular matter.

IV. Is the judge who appoints the domestic relations referee disqualified from presiding over matters in which the referee appears as liaison attorney? MCJC 3C requires a judge to raise the issue of disqualification whenever there is cause to believe the judge may be disqualified pursuant to MCR 2.003(B). MCR 2.003(B) lists seven specific areas of disqualification, but makes it clear that all situations are not covered and that a judge should be disqualified whenever the judge cannot impartially hear a case.

A policy requiring per se judicial disqualification from matters simply because the judge has appointed one of the advocates to serve as referee is not justified. Such 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. Therefore, absent circumstances which show bias a judge is not per se disqualified from presiding over matters presented by an appointee.

 
     

 

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