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Ethics Opinion

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JI-39

June 26, 1991

SYLLABUS

    A judge who, along with the judge's former law firm, is a defendant in a malpractice action, may not preside over any matter in which a member of the former law firm, or a member of the law firm which represents the judge and the former law firm in the malpractice action, appears until the malpractice action is resolved.

    References: MCJC 3; J-4; C-306; MCR 2.003(B); ABA Op i1477.

TEXT

A judge, who has been on the bench in excess of two years, has been named a defendant in a law suit filed against the judge and the judge's former law firm for alleged legal malpractice occurring during the time the judge was a member of that law firm. The judge and the law firm are covered by a malpractice policy, which has a substantial deductible. Included within the deductible are lawyer fees. The defense of the judge and the law firm is being handled by another law firm, whose fees are being financed by the judge's former firm. The partnership agreement in effect at the time the alleged malpractice occurred does not obligate the law firm to fund the defense of a former partner, but it is the former law firm's practice to do so.

The judge asks whether the judge is automatically disqualified from hearing any cases in which a member of the judge's former law firm are participating, or in which members of the law firm defending the judge and judge's former law firm, are involved.

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 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 . . .;

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

MCJC 3C states:

    "A judge should raise the issue of his disqualification whenever he has cause to believe that he may be disqualified under [MCR 2.003(B)]."

In opinion J-4 it was argued that the purpose for the two year disqualification rule found in MCR 2.003(B) is to avoid requiring a party to prove actual bias in cases in which the judge has been recently, personally and professionally, closely associated with counsel for a party.

    "It is unrealistic to conclude that a judge who recently, i.e., within the preceding two years, shared ethics and malpractice responsibilities for the acts and omissions of the advocate, and who benefitted directly or indirectly from the client's business, could put those considerations aside to adequately and impartially hear a matter in which the advocate appears." J-4.

This statement goes directly to the question of the former firm appearing before the judge while the malpractice case is pending. There is clearly an extension of the "shared ethics and malpractice responsibility" of both the judge and the law firm, and this continuation automatically disqualifies the judge from hearing and presiding on matters in which the judge's former law firm is involved, until such time as the malpractice action filed against the judge and the law firm is completely resolved.

The disqualification is automatic and is not one which would require disclosure to the parties involved in any particular case, and the judge's raising the issue of disqualification. The disqualification is such that even if all parties are made aware of the present relationship between the judge and the judge's former law firm and all agree that the judge may sit, nevertheless, the judge may not sit because the disqualification is absolute.

The judge, under the facts in this matter, is being represented, along with the judge's former law firm, by another firm of lawyers. This presents a further question of disqualification.

The general rule under circumstances where the judge's own lawyer is representing a litigant in a case brought before the judge is expressed in ABA Op i1477 (August 12, 1981), which states:

    "A judge must recuse himself or herself from adjudicating cases in which a litigant is represented by the judge's own attorney, whether the lawyer is representing the judge in a personal matter or in a matter pertaining to the judge's official position or conduct, subject to the rule of necessity.

    ". . .

    "The Model Code states a general principal that a judge should avoid the appearance of impropriety in all his activities and should conduct himself in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2. The Model Code declares that a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. Canon 3.

    ". . .

    "Any circumstances that objectively lead to the conclusion that the judge's impartiality might reasonably be questioned calls for disqualification. This objective standard extends beyond the judge's personal belief that his impartiality is not impaired." In accord, CI-306.

ABA Op i1477 also indicates that only in unusual circumstances would a judge's impartiality not be subject to reasonable question, when a lawyer appearing before the judge in behalf of a client is at the same time representing the judge in litigation pending before another court. This would be true whether the lawyer was representing the judge in a personal matter, or a matter pertaining to the judge's official position or conduct.

J-4 by way of dicta, when dealing with the question of the judge's personal counsel appearing in an unrelated matter before the judge, states:

    "In such cases we have considered it sufficient for the judge to disclose the relationship on the record, and to recuse unless the parties ask the judge to proceed."

Therefore, the judge may not preside over any matter in which a member of the former law firm, or a member of the law firm which represents the judge and the former law firm in the malpractice action appears until the malpractice action is resolved.

 
     

 

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