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Ethics Opinion

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NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.

JI-42

October 1, 1991

SYLLABUS

    A part-time probate judge may continue to practice law with law partners; however, neither the part-time judge nor any of his/her partners may practice in the part-time probate judge's court.

    A part-time probate judge is not prohibited from practicing law, including probate law, in courts other than his/her own, as long as the part-time judge does not represent anyone in connection with a matter in which the part-time judge participated personally and substantially as judge, unless all parties to the proceeding consent after consultation. In such matters in which the part-time judge is disqualified, the judge's law firm would also be disqualified unless the judge is screened from the matter and apportioned no part of the fee, and written notice is given the appropriate tribunal.

    A part-time probate judge may serve as an officer, director, or trustee of a civic or charitable organization provided the organization is not likely to engage in litigation in the part-time probate judge's court, or be regularly engaged in adversary proceedings in any court; and, provided further, does not individually solicit funds for the organization.

    References: MCJC 1, 2A, 3C, 5B, 5F; MRPC 1.7(b), 1.12(a), (c); J-3; R-13; RI-1; C-169; CI-779; MCR 2.003; MCL 600.821, 600.838, 600.839(2).

TEXT

A part-time probate judge lawfully continues to practice law in partnership with his son. The judge has had a very general practice typical of rural lawyers, including probate and estate planning, municipal corporations, and the acceptance of assignments from all courts. The judge asks:

  1. May the judge's son and law partner continue to regularly handle probate cases in the county?
  2. Would it make any difference if the father and son dissolved the joint practice and the son continued his practice solo?
  3. May the judge accept probate work in other counties?
  4. May the judge and/or his law firm continue to represent municipalities and the county in non-probate matters?
  5. May the judge continue to serve on not-for-profit boards?

Whether and under what circumstances a part-time judge is able to act as a lawyer must be determined under the Michigan Rules of Professional Conduct, relevant statutes and court rules; whether the part-time judge is able to preside in certain cases is determined under the Michigan Code of Judicial Conduct, relevant statutes and court rules.

Although MCJC 5F prohibits judges from practicing law, part-time probate judges are specifically authorized by statutes to practice law, MCL 600.821. This authority is strangely worded in that the statute begins with the phrase, "The following probate judges shall not practice law except as judges . . . ." The statute then refers to all probate judges except part-time judges. Consequently a part-time judge may engage in any kind of practice in the state of Michigan unless specifically proscribed by statute, canon or court rules.

Several separate and distinct sources of authority control the practice of law by a part-time judge: the Michigan Code of Judicial Conduct, Michigan Rules of Professional Conduct, Michigan statutes, Michigan Court Rules, and Michigan caselaw all proscribe the judge from engaging in certain types of practice and sitting as probate judge when he/she has been involved as a lawyer in the matter before it came to court.

The relevant provisions of the Michigan Code of Judicial Conduct are as follows:

    "Canon 2A.Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly."

    "Canon 3C. A judge should raise the issue of his disqualification whenever he has cause to believe that he may be disqualified under GCR 1963, 405."

    "Canon 5B. A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or non-legal advisor of a bona fide educational, religious, charitable, fraternal, or civic organization, subject to the following limitations:

      "(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court.

      "(2) A judge should not individually solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of his office for that purpose, but he may be listed as an officer, director, or trustee of such an organization. A judge may, however, join a general appeal on behalf of an educational, religious, charitable, or fraternal organization, or speak on behalf of such organization."

    "Canon 5F.A judge should not practice law for compensation except as otherwise provided by law."

The relevant statutory authorities include the following:

    MCL 600.838.

      "(1) A probate judge shall not sit in on any proceeding:

        "(a) In which he is a party, or is financially interested.

        "(b) In which he would be excluded from being a juror by reason of consanguinity or affinity to any of the parties.

        "(c) In which he is related with the third degree of consanguinity or affinity to any of the attorneys of any party, witness, or representative in the proceeding. This disqualification may be waived by stipulation filed in the proceeding.

        "(d) Which involves or may involve the validity or interpretation of a will, contract, deed, mortgage, bill of sale, note or other document which he prepared, in the preparation of which he assisted, or to the execution of which he acted as a witness.

        "(e) Which involves a contested matter concerning which he advised a party to the contest.

        "(f) In which a probate register or other county employee of the probate court in that county or probate court district, while holding that office or employment, prepared or assisted in the preparation of a will, contract, deed, mortgage, bill of sale, note, or other document involved in the hearing or trial, or acted as a witness to the execution thereof.

      "(2) A judge of probate shall not decide nor participate in the decision of any question which is argued in the court when he was not present and sitting therein as a judge.

      "(3) When a probate judge is disqualified within the meaning of subsection (1) or (2), the judge shall be deemed incapacitated for purposes of section 824."

    MCL 600.839.

      "(1) A probate judge, probate register, or employee of the probate court shall not be:

        "(a) A fiduciary or appraiser of an estate under the jurisdiction of the probate court in the county or probate court district in which he is a probate judge, probate register, or employee.

        "(b) An attorney or counsel in an action or matter which may depend upon, or relate to, a sentence or order made or entered by the probate judge in the county or probate court district in which he is a probate judge, probate register, or employee.

        "(c) An attorney or counsel for or against a fiduciary appointed under the jurisdiction of the probate court in the county or probate court district in which he is a probate judge, probate register, or employee, in an action or proceeding brought by or against the fiduciary as such or in any action or proceeding relating to the official conduct of that fiduciary.

      "(2) A probate judge shall not have a partner practicing in the probate court in the county or probate court district in which he is a probate judge. Unless he is a party to the proceeding, a probate judge shall not be directly or indirectly interested in the costs of a proceeding that is brought in the probate court in the county or probate court district in which he is a probate judge.

      "(3) A clerk or employee of the probate court may not be an appraiser, referee, or divider of an estate which is under the jurisdiction of the probate court in the county or probate court district in which he is a clerk or employee."

The relevant Michigan Court Rule is MCR 2.003 which provides as follows:

    "(A) Who May Raise. A party may raise the issue of a judge's disqualification by motion, or the judge may raise it.

    "(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, but this does not apply to

        "(a) investments in securities traded on a national securities exchange registered under the Securities Exchange Act of 1934, 15 USC 78a et seq.;

        "(b) shares in an investment company registered under the Investment Company Act of 1940, 15 USC 80a-1 et seq.;

        "(c) securities of a public utility holding company registered under the Public Utility Holding Company Act of 1935, 15 USC 79 et seq.;

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

    "A judge is not disqualified merely because the judge's former law clerk is an attorney of record for a party in an action that is before the judge or is associated with a law firm representing a party in an action that is before the judge."

    "(C) Procedure.

      "(1) Time for Filing. To avoid delaying trial and inconveniencing the witnesses, a motion to disqualify must be filed within 14 days after the moving party discovers the ground for disqualification. If the discovery is made within 14 days of the trial date, the motion must be made forthwith. If a motion is not timely filed, untimeliness, including delay in waiving jury trial, is a factor in deciding whether the motion should be granted.

      "(2) All Grounds to Be Included; Affidavit. In any motion under this rule, the moving party must include all grounds for disqualification that are known at the time the motion is filed. An affidavit must accompany the motion.

      "(3) Ruling. The challenged judge shall decide the motion. If the challenged judge denies the motion,

        "(a) in a court having two or more judges, on the request of a party, the challenged judge shall refer the motion to the chief judge, who shall decide the motion de novo:

        "(b) in a single-judge court, or if the challenged judge is the chief judge, on the request of a party, the challenged judge shall refer the motion to the state court administrator for assignment to another judge, who shall decide the motion de novo.

      "(4) Motion Granted. When a judge is disqualified, the action must be assigned to another judge of the same court, or, if one is not available, the state court administrator shall assign another judge."

A part-time probate judge may continue to practice law with partners; however, neither the part-time probate judge nor any of his/her partners may practice in the part-time probate judge's court. MCL 600.839(1).

The practice of law by part-time probate judges is allowed by MCL 600.821, subject to the above limitations. Between the blanket authorization for part-time probate judges to practice law, and the situations clearly proscribed by statute, court rule or canon, there are many possible situations that may be controlled by nothing more than Canon 2A, namely the appearance of impropriety, or 1A, appearance of partiality.

Regarding the judge's question about continuing the law partnership, MCL 600.839(2) and CI-779 are directly on point. MCL 600.839(2) provides that a probate judge's partner may not practice in the judge's court. CI-779 held that the prohibition was absolute even if a visiting judge were assigned.

A part-time probate judge is not prohibited from practicing law, including probate law, in courts other than his/her own.

There is no prohibition against a part-time probate judge practicing probate law in a probate court other than his/her own. Nor is there any prohibition against the judge's son practicing in the part-time judge's court provided he is not a partner of the judge, and provided further that a visiting judge is assigned by the State Court Administrator to hear the case.

Opinion 169 (March 1957), held that a part-time probate judge was not disqualified from drafting wills for clients, but that the judge would be disqualified from sitting on a case where the judge had prepared a will. The source of authority for that opinion was MCL 600.838(d). By a strict construction of the statute it may be that the judge can sit on a probate proceeding if the validity or interpretation of the will is not at issue. It could be proper procedure for the part-time judge to disqualify himself/herself for the hearing to admit the will to probate, or to interpret the will, but thereafter his/her disqualification could be remitted.

Opinion 169 predates both MCR 2.003(B) and the current Michigan Rules of Professional Conduct. MCR 2.003(B)(3) prohibits a judge from presiding in a matter for which the judge had been consulted as an attorney; under Michigan Rules of Professional Conduct, Rule 1.12(a), a judge may not represent anyone in connection with a matter in which the judge participated personally and substantially as judge unless all parties to the proceeding consent after consultation. In such matters in which the judge is disqualified, the judge's law firm would also be disqualified unless the judge is screened from the matter and apportioned no part of the fee, and written notice is given the appropriate tribunal, MRPC 1.12(c).

RI-1 discussed a part-time domestic relations referee and the cases the referee could undertake as lawyer in private practice, as well as those matters in which the referee could be involved as referee. Citing MRPC 1.12 and 1.11, the opinion held that 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, that the part-time referee may not hear matters in which the referee participated as lawyer, and that the referee is disqualified from hearing matters presented by the referee's law firm.

A part-time probate judge is not prohibited from representing municipalities, but may not represent them in his/her own court. Although facts could arise in the representation of municipal corporations by a part-time probate judge that might suggest an appearance of impropriety, MCJC 2A, in general, no statute, court rule, canon or appellate case presents a blanket prohibition.

It could be argued that a part-time probate judge should not represent the county of his/her judgeship. The county commissioners have wide discretion in setting the judge's salary. To have the county commissioners and the probate judge lined up on one side of a litigated issue in front of a colleague of the part-time judge would appear to the litigating public to be anything but a impartial and unbiased forum.

In R-13 we considered several former ethics opinions which limited a part-time prosecutor's private practice to counties outside the prosecutor's enforcement jurisdiction. We held that nothing in the current Michigan Rules of Professional Conduct suggests that geography is a proper criteria for limiting the scope of the part-time prosecutor's private practice. Similarly, we find nothing in the Michigan Code of Judicial Conduct or the Michigan Court Rules which per se forbids a part-time judge's continued private practice in the jurisdiction in which the judge serves as judge. Before the part-time judge undertakes a representation matter on behalf of the county, the part-time judge would need to perform conflict screening. MRPC 1.7(b) states:

    "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

      "(1) the lawyer reasonably believes the representation will not be adversely affected; and

      "(2) the client consents after consultation . . . ."

Thus, before serving as lawyer for the county in a matter, the part-time judge would have to determine whether the part-time judge owed duties to a third party, i.e., judicial duties, or had personal interests, e.g., judicial salary concerns, which would materially limit the part-time judge's representation of the county client. Such conflict screening must take place on a case-by-case basis; without a specific example of representation which the inquirer wishes to undertake, we cannot determine whether the county client could waive the conflict.

Clearly judges whose salaries are affected by county commissioners may still preside in cases in which the salary-setting entity appears as a party. Even if such a situation did present a conflict, the conflict is permitted under the rule of necessity, since there is no one who could act in the place of the judges in such matters. The question of whether another judge may preside in a matter in which the judge's colleague appears as counsel, and where the colleague's client is the entity which sets the presiding judge's salary is not before us.

MCJC 5B permits a judge to serve as an officer, director, or trustee of a civic or charitable organization, provided the organization is not likely to engage in litigation in the part-time probate judge's court, or be regularly engaged in adversary proceedings in any court; and provided further, the judge does not individually solicit funds for the organization. See, J-3.

The inquiry does not state which organizations the judge serves as an officer or board member. The fact that the organization is not-for-profit does not by itself determine whether the organization is a charitable/civic organization within the scope of the Canon. Without additional facts we can only note the rule and suggest that the inquirer apply it to the organization in question. We do not, however, see any reason to distinguish between service on such boards by full-time judges and service by part-time judges.

The comment to Proposed Michigan Code of Judicial Conduct (1991), Rule 4C is instructive as to the philosophy behind judges serving on civic/charitable boards:

    "A judge should be encouraged to devote time and energy to educational, religious, charitable, fraternal or civic organizations, including services on boards of directors or trustees of such non-profit organizations. Judicial ethical constraints should not require that a judge be so isolated that the judge cannot serve the community other than from the bench. The judge must not, however, allow such affiliations to cast doubt on the judge's impartiality."

Accordingly, it is not unethical for the judge to continue to serve on boards of charitable organizations subject to the above limitations.

 
     

 

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