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Ethics Opinion

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JI-34

December 21, 1990

SYLLABUS

    A judge is disqualified from presiding in a matter involving the state or county which was initiated or pending in the county prosecutor's office while the judge served as chief prosecutor.

    A judge may preside in matters involving the county or state which were initiated after the judge resigned as chief prosecutor, even if the judge had acted as lawyer for the county or state within the prior two years.

    A judge may preside in matters involving the county or state which were initiated after the judge resigned as chief prosecutor even if the charge was initiated under a policy set by the judge while chief prosecutor, or even if the case was under investigation while the judge was chief prosecutor, so long as the judge did not participate personally and substantially in the matter.

    A criminal case is "initiated" for purposes of this professional obligation with the first formal prosecutorial pleading designed to bring the named alleged offender before the court.

    "Personal and substantial participation" in a matter means being personally involved to an important, material degree. Determination of what constitutes "personal and substantial participation" depends on the context, and need not involve a determination on the merits of the matter, direct contact with witnesses, parties or their lawyers, or actual appearance before a tribunal.

    References: MCJC 1, 2, 3; MRPC 1.6, 1.11, 1.12; RI-4, RI-11, RI-43; CI-368, CI-672; MCR 2.003(B); MCL 49.153, MSA 5.751; Mich Const 1963, art 7, sec 4; Barry v. United States, 528 F2d 1094 (CA 7 1976); Genesee Prosecutor v. Circuit Judge, 386 Mich 672 (1972); Gravenmier v. United States, 469 F2d 66 (CA 9 1972); In re Grand Jury Investigation, 486 F2d 1015 (CA 3 1973); United States v. De Luna, 763 F2d 897 (CA 8 1985); United States v. Di Pasquale, 864 F2d 271, 278 (CA 3 1988); United States v. Vasilick, 160 F2d 631 (CA 3 1947); OAG 1945-46, No 0-3340, p 288 (March 27, 1945).

TEXT

A chief judge whose court is about to invest a judge who was the county chief prosecutor asks for an opinion on the scope of disqualification from cases involving the prosecutor's office for this new judge.

The current inquiry seeks a clarification whether CI-368 applies to a judge who was the chief prosecutor and not merely an assistant prosecutor. A clarification is also sought of the meaning of the term "personal and substantial involvement" in a matter, and a delineation of what criminal cases the new judge may handle.

MCJC 3C requires a judge to raise the issue of disqualification if that judge may be disqualified under the Michigan Court Rules. MCR 2.003(B) states:

    "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 preceeding 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 . . .;

      "(7) is disqualified by law for any other reason."

I. DISQUALIFICATION OF JUDGES WHO WERE ASSISTANT PROSECUTORS

CI-368 held that an assistant prosecutor who is elected judge was not a "partner" or a "member of a law firm" within the meaning of GCR 912.2(4) [currently MCR 2.003(B)(4)] which disqualifies a judge who "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." CI-368 did not treat the prosecutor's office as a "law firm" for purposes of disqualification because a prosecutor, unlike many former law firm members, did not have any continuing economic interest in the completion of the law firm's business. The opinion specifically noted:

    "Furthermore, we do not believe the Supreme Court intended to include full-time county paid prosecutor[s] within the scope of GCR 912.2(4) [currently MCR 2.003(B)(4)]."

A judge who was an assistant prosecutor, and who was not substantially involved in a particular criminal prosecution and thus gained no confidential, inadmissible, or prejudicial information while an assistant prosecutor need not be disqualified as a judge hearing the case.

CI-368 recognized that to apply the disqualification rule contained in GCR 912.2(4) to government lawyers would substantially handicap the ability of a prosecutor to become a judge if that person could not be involved in any criminal cases for two years. Such an interpretation of subsection (4) of this disqualification rule would not only handicap qualified prosecutors from becoming judges, it would also make the position of a prosecutor less attractive to many individuals who aspire to a judicial career.

For reasons stated more fully in this opinion, we believe that the Supreme Court in adopting subsection (4) of the disqualification rule meant it to apply only to private law firms and private parties. MCR 2.003(B)(4) is concerned with the likelihood of preexisting and possibly continuing economic ties which make it inappropriate for a judge to hear a case involving former partners, clients and associates for a two year period even if the judge had no prior personal involvement in the case. It is only for private practitioners that the knowledge or the allegiance of a partner, former client, or former associate is imputed to the judge necessitating a two year disqualification.

If the Supreme Court intended MCR 2.003(B)(4) to apply to prosecutors, no prosecutor who became a district or circuit court judge could hear any criminal case brought by the state for a two year period because each would surely have represented the State of Michigan as a "party" in some criminal proceeding. If MCR 2.003(B)(4) applies to government lawyers, it would not be necessary to deal with the "partner" and "member of a law firm" language, since an assistant prosecutor would be disqualified for two years from all criminal cases because that assistant prosecutor would have formerly been an "attorney for a party" involved in current criminal cases.

While RI-43 determined that ". . . a Prosecutor's Office does constitute a 'firm' for purposes of [MRPC 1.12]," which requires "screening" of a judge or judge's law clerk who joins a "firm" that is handling a case on that judge's docket, this is not inconsistent with the different treatment of a prosecutor's office under MCR 2.003(B)(4). MRPC 1.12 seeks to avoid the use of a prior judicial involvement to advise one of the two litigants to a case. The policy behind this rule warrants its application to both parties to the case - the defense and the prosecution. Yet, differing policy considerations for private and government counsel led this Committee to its conclusion that MCR 2.003(B)(4) did not apply to government lawyers and did not require a two year imputed disqualification of a judge who was a former assistant prosecutor from criminal cases that were handled solely by other prosecutors.

MCR 2.003(B)(4) is not necessary for former government lawyers because they do not have conflicts of interest caused by lingering economic entanglements with the parties or other lawyers involved in ongoing litigation. Other types of potential conflicts that could involve former prosecutors are covered by other subsections of the Michigan disqualification rule.

Even if MCR 2.003(B)(4) is not applicable to prosecutors, MCR 2.003(B)(2) and (3) are applicable to prosecutors and would require disqualification 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. Thus a former assistant prosecutor is prohibited as a judge from hearing any case in which he/she acted as principal lawyer or in which he/she had substantial responsibility while a prosecutor.

Limiting the application of MCR 2.003(B)(4) to private lawyers and private parties is consistent with the former ABA Model Code of Judicial Conduct Canon 3C(1) adopted August 16, 1972, and with the federal disqualification rule in 28 USC 455(b), as amended December 5, 1974. The Michigan Supreme Court in adopting the Michigan Code of Judicial Conduct on October 1, 1974, was surely aware of the ABA Model Code of Judicial Conduct that prompted many states and Congress to modify their rules affecting judicial conduct and disqualification. The Commentary to ABA Model Canon 3C(1) notes that government lawyers are to be treated less strictly than private practitioners for purposes of imputed disqualification. The 1990 ABA Model Code of Judicial Conduct made no substantive changes to Model Canon 3C(1) or its commentary. See ABA Model Code of Judicial Conduct 3E(1).

Professor E. Wayne Thode, the reporter for the ABA Committee, testified before Congress that the ABA Committee initially considered treating private and government lawyers the same for imputed disqualification. But this approach was soon abandoned because "that really was taking too hard a line" on government lawyers because there was "no good reason" to apply "too sweeping a disqualification" to government lawyers like those applied to lawyers in private firms. Hearings on S.1064 Before the Subcommittee On Improvement In Judicial Machinery Of The Committee On The Judiciary, United States Senate, 93d Cong. 1st Sess., 100 (1971-1973).

Within two months after the Michigan Supreme Court adopted its current Code of Judicial Conduct that incorporates the judicial disqualification standards set out in the Michigan Court Rules, Congress adopted its current version of the disqualification rules. Congress specifically adopted a separate rule for a judge who had served as a lawyer in "private practice" and a more lenient rule for a judge who was a lawyer in "government employment." Compare 28 USC 455(b)(2) with 455(b)(3).

II. DISQUALIFICATION OF JUDGES WHO WERE CHIEF PROSECUTORS

MCR 2.003(B)(4) need not apply to judges who are former prosecutors in part because the major conflicts these individuals would face as judges are adequately covered by MCR 2.003(B)(2) on bias or prejudice toward a party or lawyer and MCR 2.003(B)(3) where the judge had been consulted or employed as counsel. For an assistant prosecutor, subsection (3) would only apply to a case in which he or she was actually consulted on some significant issue or actually entered an appearance on a case.

The office of the "prosecuting attorney" is a constitutional office whose duties are prescribed by law. Mich Const 1963 art 7, sec 4; OAG, 1945-46, No 0-3340, p 288; Genesee Prosecutor v. Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972). The prosecutor is the chief law enforcement officer of the county. Genesee Prosecutor v. Circuit Judge, supra, 386 Mich at 683. MCLA 49.153; MSA 5.751, sets out the duties of the prosecuting attorney:

    "Sec. 53. The prosecuting attorneys shall, in their respective counties, appear for the state or county, and prosecute or defend in all the courts of the county, all prosecutions, suits, applications and motions, whether civil or criminal, in which the state or county may be a party or interested."

Thus, a prosecutor has ultimate statutory responsibility to act as the lawyer for the county and the state in all cases in the county, both civil and criminal. The prosecutor is by statute counsel "for the state or county . . . in all cases" (emphasis supplied) whether appearing personally or, as is more common, through an assistant prosecutor, and without regard to whether the prosecutor's name appears on the court pleadings.

Accordingly, a prosecutor who becomes a judge would be subject to disqualification under MCJC 3C and MCR 2.003(B)(3) in any civil or criminal matter involving the county or the state in which that judge had acted as an lawyer for the government unit involved. This disqualification is imposed even in cases in which the prosecutor was not personally involved in any active capacity because the prosecutor is by statute lawyer for the county or the state in all cases in the prosecutor's county. Indeed, Bradshaw v. McCotter, 785 F2d 1327 (CA 5 1986), provided habeas corpus relief where a state judge on the case was earlier a prosecuting attorney whose name appeared on a brief even though the judge had no substantial participation in the case while prosecutor. "The separation between the roles of prosecutor and judge must be certain and inflexible." 785 F2d at 1329.

This disqualification of the chief local law enforcement lawyer is consistent with the disqualification of a federal judge who was the United States Attorney from all cases pending while that judge served as United States Attorney. The United States Attorney has statutory duties similar to Michigan prosecutors which makes the United States Attorney "of counsel" on all cases involving the United States in his or her district. 28 USC Sec 547; United States v. Maher, 88 F Supp 1007 (ND Maine 1950).

Disqualification of judges who were the United States Attorney in their districts does not apply to Assistant United States Attorneys who were not personally involved in the investigation or prosecution of the case. United States v. De Luna, 763 F2d 897, 907 (CA 8 1985). Nor does it apply to the Attorney General or an Assistant Attorney General who was not personally involved "of record," or in an advisory or supervisory role. See Mr. Justice Rehnquist's opinion in Laird v. Tatum, 93 S Ct 7 (1972), regarding his 1971 Congressional testimony as Assistant Attorney General on an issue that was involved in the Laird v. Tatum case that was then pending before the D.C. Circuit Court of Appeals but in which he had no personal involvement.

The policy of more restrictive treatment for purposes of disqualification of higher ranking chief prosecutors is also parallel to the differential disqualification treatment for higher and lower ranking officials in the Ethics In Government Act, 18 USC Sec 207(b) and (c).

Because the disqualification under MCR 2.003(B)(3) is triggered only when the judge was earlier "consulted or employed as an attorney in the matter in controversy," and because the chief prosecutor's statutory representation under MCLA 49.153 applies only to matters "in all the courts of the county," a former chief prosecutor would not be disqualified from hearing a case that was being investigated while the judge was chief prosecutor if the judge was not personally and substantially involved in that investigation.

Also, the state is not a party to a case under MCLA 49.153 until the case is formally begun. Thus, it is only when the prosecutor's office initiates the first formal prosecutorial proceeding (complaint, information or indictment) designed to bring the named alleged offender before the court that disqualification rule MCR 2.003(B)(3) would apply to a former prosecutor who was not personally and substantially involved prior to that time. See, e.g., United States v. Wilson, 426 F2d 268 (CA 6 1970).

General supervisory responsibilities of an assistant prosecutor or the chief prosecutor prior to the initiation of the charging document is not sufficient to require a disqualification because the judge would have had no personal involvement gaining access to confidential, inadmissible or prejudicial information.

Disqualification is not required for a prosecution commenced after the judge left the prosecutor's office, but under a general policy guideline or statutory interpretation established by the judge while the chief prosecutor, unless the judge felt so strongly about the issues that it demonstrated a personal bias. Barry v. United States, 528 F2d 1094 (CA 7 1976).

Nor is disqualification required if the judge was involved as prosecutor of the same defendant in a different case unless there was a lingering personal bias or prejudice against the defendant. See, e.g., United States v. Di Pasquale, 864 F2d 271 (CA 3 1988); In re Grand Jury Investigation, 486 F2d 1015 (CA 3 1973); Gravenmier v. United States, 469 F2d 66 (CA 9 1972); United States v. Vasilick, 160 F2d 631 (CA 3 1947).

III. THE MEANING OF "PERSONAL AND SUBSTANTIAL" PARTICIPATION

The present inquiry also requested a clarification of what constitutes "personal and substantial" participation in a case. In light of the above analysis, this has limited applicability to the chief prosecutor, other than in cases investigated but not initiated before leaving the prosecutor's office. These terms have greater applicability to assistant prosecutors for whom personal and substantial responsibility triggers disqualification under MCR 2.003(B).

In CI-672, we noted that "substantial responsibility means 'the attorney had been personally involved to an important, material degree' in investigations about or deliberations on the transactions and facts in question during his/her tenure as a governmental employee." New Jersey Op 614 (7/26/88) defined "substantial responsibility" as making a decision in regard to a matter of substance. It found that a government lawyer's assignment of a matter to a subordinate purely on a rotational basis did not constitute "substantial responsibility." RI-11 found that prehearing conferences and motions on the merits, including discovery motions, were substantial. Maine Op 80 (8/5/87) noted that even uncontested motions on the merits of the case were sufficient to cause disqualification. Alabama Op 88-43 (6/30/88) found a continuance of a case was not on the merits and did not constitute "substantial responsibility."

Obviously, the context is important to the determination of what constitutes substantial participation on a matter. For example, CI-672 found a former administrative law judge [ALJ] could represent a teacher as a client in an appeal to the State Tenure Commission, and a prior review by that lawyer, which an ALJ of a petition and answer filed in that tenure appeal was not "substantial participation" where the lawyer, while an ALJ, did not investigate, deliberate or otherwise act on the merits of the appeal.

RI-4 determined that a former assistant city attorney, who had earlier read a police report and signed a prepared drunk driving complaint and warrant, had not "participated personally and substantially as a public officer" so as to preclude under MRPC 1.11 later representation of the criminal defendant. In that case, the lawyer, while assistant city attorney had no other contact with the arresting officer, witnesses, or investigation.

It is not necessary for the lawyer to make a determination on the merits of the matter, or to have direct contact with witnesses, the parties or their lawyers, or to make an appearance before a tribunal in order for there to be substantial participation. See RI-4, RI-11.

MRPC 1.11(d) defines "matter" broadly as:

    "(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties; and

    "(2) any other matter covered by the conflict of interest rules of the appropriate government agency."

The context of CI-672 and RI-4 was a former government officer later representing a private client. Restrictions on a lawyer relinquishing a position of public responsibility are understandably less severe than restrictions on a lawyer assuming a public position of power and responsibility. To preserve that neutrality and integrity of the court, we are concerned about even the appearance of impropriety, MCJC Canon 2. Thus, the measure of when an action is "substantial" is less in the context of MCJC 3C and MCR 2.003(B) for disqualifying a judge than for a MRPC 1.11 disqualification of a lawyer who was formerly a public official. The touchstone for judicial disqualification was aptly characterized in United States v. DeLuna, 763 F2d 897, 907 (CA 8 1985):

    ". . . if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality."

A primary purpose of the judicial disqualification rules is to maintain public confidence in the administration of justice. Thus, a pro forma review of a court pleading without more, such as suggesting changes or how to respond, would not constitute "substantial participation" for a former prosecutor who became a judge; but actually signing the complaint and warrant would be "substantial," because that act entails a determination regarding probable cause that the defendant committed a crime. A "knowledgeable member of the public would find . . . a reasonable basis for doubting a judge's impartiality" where the judge hears a case in which he/she initiated and signed the initial document accusing the defendant of a crime.

CONCLUSION

Thus, a judge who was the chief prosecutor in the county is disqualified from hearing any portion of a criminal or civil case involving the state or county which was initiated or pending while the judge served as prosecutor.

A judge who was the chief prosecutor in the county may hear civil or criminal cases involving the county or state if these cases were initiated after the judge resigned as prosecutor, even if the judge had acted as lawyer for the county or state within the prior two years.

A judge who was the chief prosecutor in the county may hear civil or criminal cases involving the county or state if these cases were initiated after the judge resigned as prosecutor even if the charge was initiated under a policy set by the judge while prosecutor, or even if the case was under investigation while the judge was prosecutor, so long as the judge as prosecutor did not have any personal and substantial involvement in the investigation.

A criminal case is "initiated" for purposes of this professional obligation with the first formal prosecutorial pleading designed to bring the named alleged offender before the court. Personal and substantial involvement in a matter means being personally involved to an important, material degree. Determination of what constitutes substantial participation on a matter depends on the context, and it need not involve a determination on the merits, direct contact with the witnesses, the parties or their lawyers, or actual appearance before a tribunal.

 
     

 

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