March 12, 1991
A judge shall not negotiate for employment with any person who is involved as a party or as a lawyer for a party in a matter in which the judge is participating personally and substantially.
Where negotiations for employment have begun and a matter involving the prospective employer or in which the negotiating entity appears is assigned to the judge, 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.
If the judge does not join a prospective employer following employment negotiations, the judge should for a reasonable time disclose to all parties the proposed professional relationship, and recuse unless asked to proceed.
References: MCJC 1, 2A, 2C; MRPC 1.11(c), (d), 1.12(b); JI-34; RI-11; CI-734; MCR 2.003(B); Woods v Covington County Bank, 537 F2d 804 (CA 5 1976).
A sitting judge who has been unsuccessful in a reelection attempt seeks guidance regarding negotiating for employment in contemplation of leaving judicial office.
Rules governing judicial conduct require judges to perform the duties of the office impartially to maintain public confidence in the integrity of the judicial system, MCJC 1. A judge must avoid all impropriety, MCJC 2A. A judge may not allow the judge's personal interests to affect judicial conduct or judgment, nor should a judge use the prestige of office to advance personal interests, MCJC 2C. Pursuant to MCR 2.003(B), a judge is disqualified when the judge cannot impartially hear a case.
The Michigan Rules of Professional Conduct provide guidance to former judges in MRPC 1.12(b) which states:
"A lawyer shall not negotiate for employment with any person who is involved as a party, or as an attorney for a party, in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or arbitrator . . . ."
Similarly, MRPC 1.11(c), involving a lawyer as public officer or employee, states:
"Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:
". . .
"(2) negotiate for private employment with any person who is in-volved as a party or as an attorney for a party in a matter in which the lawyer is participating personally and substantially, . . . ."
Since judges are required by law to be lawyers, these provisions of the lawyer ethics rules apply to equally to judges. The very essence of the judicial system is to provide legal procedures so that matters can be presented impartially and decided strictly on the merits, unaffected by the prospects of private interest. Judges seeking to enter private employment may find themselves pressured to impress favorably private concerns with which they officially deal, or to bend over backwards to avoid the impression of favoritism. Although rules governing employment negotiation should not be so restrictive as to inhibit transfer of employment from the bench, they should seek to avoid the "pressure" situations and the consequential erosion of public confidence in the administration of justice. See, Woods v Covington County Bank, 537 F2d 804 (CA 5 1976).
"Personal and substantial participation" means the judge has been involved to an important, material degree in investigations about or deliberations on the transactions and facts in question. See, MRPC 1.11(d), RI-11, JI-34. Clearly a judge's ruling on a matter would constitute personal and substantial participation. A judge could, under certain circumstances, have personal and substantial participation by consulting with a colleague over a matter which had been assigned to the colleague. On the other hand, administrative policies established by a judge and carried out by staff members without direct involvement of the judge would not constitute the judge's personal and substantial participation. Ultimately, the degree of participation in the matter is a question of fact, and the judge should err on the side of caution.
A rule which prohibits employment negotiation in all matters in which a judge had ever been personally and substantially involved would effectively make a long-serving judge unemployable.
A judge's impartiality could be called into question if lawyers whose firms were discussing future employment with the judge appear as advocates before the judge. Where negotiations have begun and a matter involving the prospective employer or in which the negotiating law firm appears is assigned to the judge, 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. The negotiations create an appearance of partiality that is disqualifying. MCJC 1, 2A.
A judge should carefully consider the advisability of entering into private employment discussions with a lawyer or firm that recently has appeared before the judge. A judge should not initiate negotiation for employment with a lawyer or law firm that has pending matters in which the judge is participating personally or substantially, CI-734. Any appearance that the judgment or the judge's position has been used for personal gain is to be avoided.
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. "Reasonable time" should be determined after weighing factors such as the length of time the negotiations have been in progress, the notoriety of the negotiations, and whether the break in negotiations was amicable.