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Ethics Opinion

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JI-43

October 3, 1991

SYLLABUS

    Absent actual bias or another clear reason, a Court of Appeals judge, sued in one case need not mandatorily recuse from another unrelated case where the lawyer for the judge or for the judge's opponent is engaged.

    The Court of Appeals judge should consider voluntary recusal to avoid an untoward appearance while the judge's own case is pending. If the judge decides the possible attribution of bias or prejudice is too attenuated to warrant recusal, the judge should still advise all parties and their counsel of the relationship and seriously consider any subsequent request for recusal.

    Absent actual bias, a judge is not per se disqualified from reviewing unrelated matters from a lower court in which the judge's own case is pending, but where the judge sits in a multi-judge court and reassignment is readily available, the judge should recuse. Where the reviewing judge is in a one-judge court and does not recuse, the judge should take special care not to unduly praise or criticize the lower court judge in opinions issued while the reviewing judge's own case is pending before the lower court.

    When litigation is threatened against a judge but not yet filed, no general rule is possible, since the seriousness of the threat, the facial legitimacy of the potential suit and other case-specific factors must be assessed. Where those factors are present, a judge should seriously consider recusing from cases in which a lawyer for a party in the judge's own matter appears.

    If the judge is disqualified from unrelated cases in which a lawyer for a party in the judge's own matter appears, the judge is also disqualified from cases in which other members of the lawyers' firms appear.

    The judge's own case should have a finite life, and the ensuing disqualifications should be coterminous with it.

    References: MCJC 3D; MCR 2.003(B); JI-23; RI-52.

TEXT

A member of the Michigan Court of Appeals has presented a series of questions arising from the judge being a partner in a business venture before becoming a judge. The essential facts are as follows:

    Prior to becoming an appellate judge, the judge was a general partner in a real estate development with several other individuals. The assets included two buildings which, among other tenants, had two restaurants with liquor licenses. When the judge became judge, the judge divested the interest to another partner to be held in trust for the judge's four children, two of whom are now adults and two are minors. Two matters have caused the judge to seek an ethical opinion of the Committee. One has already resulted in litigation, and the other may soon do so as well. The same general analysis is required for each situation.

A. CURRENT LITIGATION

A lawyer in the judge's home county is also the major investor in a corporation owning a restaurant. The restaurant corporation has sued the judge's former real estate partnership and the judge personally for an alleged breach of contract and promise to pay on a note in a land purchase agreement. The matter is now pending in the county circuit court.

From this situation certain questions arise on which the inquirer seeks advice concerning recusal in matters involving several of the players in the legal drama, and the duration of any disqualification.

  1. the plaintiff's lawyer, who is also a major shareholder in the plaintiff corporation;
  2. the remaining members of the law firm of plaintiff's lawyer;
  3. the lawyer representing the the judge in the case;
  4. other members of the law firm of the judge's lawyer;
  5. appellate review of unrelated cases of the circuit court judge who is hearing the case.

It is naturally a "given" that the inquirer would be disqualified from hearing any part of the litigation in which the judge is a party.

B. POSSIBLE LITIGATION

In a separate transaction while the judge was a partner, the partnership entered into a real estate loan with a commercial bank. Both the judge and the judge's spouse signed as guarantors of the bank loan and, beginning with the commencement of the loan and continuing to this day, have been making pro rata payments to the bank on the loan. The partnership has allegedly failed to keep up its payments, leading the bank, through its lawyers, to threaten litigation against the partnership as well as the judge and the judge's spouse.

The judge asks whether to recuse from cases involving any of the parties, their lawyers, or the trial judge in cases other than the one where litigation is now imminent. In this aspect of the request, the parties concerned are:

  1. the commercial bank;
  2. the bank's lawyers;
  3. the lawyer representing the judge;
  4. that law firm of the judge's lawyer;
  5. the trial judge who may preside if a suit is filed.

DISCUSSION

Though some questions here are novel, the Michigan Canons of Judicial Ethics are helpful. 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 . . . ."

Michigan's rule on judicial disqualification is clearly and narrowly drawn. A judge must recuse himself when "(he) cannot impartially hear a case . . . ." MCR 2.003(B). Impartiality is destroyed or threatened by a number of different circumstances, including an actual or a presumed bias. Thus when a judge holds an actual bias toward a litigant (favorable or not), the judge must disqualify himself. Kolowich v. Ferguson, 264 Mich 668 (1933). See also People v. Wolverine Manufacturing Co, 149 Mich 580 (1907); People v. Moran, 36 Mich App 730 (1971); Auto Workers Flint Credit Union v. Kogler, 32 Mich App 257 (1971). Presumed rather than actual bias is also grounds for mandatory disqualification. As listed in MCR 2.003(B) for example, interest in the litigation, as a party or relation to a party or a lawyer in the matter, while not requiring actual prejudice be shown, evidences sufficient likelihood of bias that the rule makers assume disqualification is necessary. See, R-3.

In the case of Hirych v. State Fair Commission, 376 Mich 384 (1965), the Supreme Court seems to have relaxed the standards for disqualification to encourage judges to disqualify themselves when "the least possible basis for it does exist." Hirych, 376 Mich at 396. Two justices did not join in the plurality's opinion, but did not state why.

This expansion of the discretion to recuse gives to the judiciary the power to scrutinize the public appearance of a case, with a charge to exercise the power wisely. Some people see conspiracies or "old-boy/girl networks" under every bed and in every community. Credit must be given to the honesty and wisdom of the individual judge. However, some circumstances do call for special care by the judge. The public can rightfully see the potential for abuse where a judge must choose between parties or their lawyers, where the judge has been placed in the arena with them as a party or a lawyer even though in a different case. It is there where the judge, now or soon to be engaged in a personal battle of some significance to the judge, must be careful.

The federal courts operate now under a disqualification, 28 USC 455, which incorporates a reasonable person standard for a situation where the judge's impartiality might reasonably be questioned.

Lawyers are trained to set aside their personal feelings in analyzing their client's case to find the best light that can be shone on it. Zeal and emotion are to be the servants of dedication to the client's best interests. Vigorous competition with the opposing side is encouraged but within rules. The ideal visualized is a genuinely hard-fought case left in the courtroom on decision day, along with any grudges or animosities. This ideal, that lawyers and judges can contend without lasting rancor, is at the core of our system.

However, reality can be different. The fear is that a judge will not be impartial when engaged in a legal struggle in a building across the street with some of the same lawyers for and against the judge. Can it be said this is an unrealistic fear? Our rules trace the ideal, that only when bias leaves one court and enters another must the judge leave the case. However, the judge may in the exercise of wisdom avoid giving any lawyer, party or the general public a perception of bias, without fear of demonstrating weakness or admission of impropriety.

In this case, when suit of a substantial nature, not spurious nor used as a tactic to induce disqualification, is filed against a judge, the judge, even absent actual prejudice against a lawyer or party, should seriously consider recusal, even when not mandatory. This may extend to cases other than the one in which the judge is actually a party, and should last as long as the judge's personal cause is at risk in the hands of the lawyer for any party.

As to the trial judge to whom the appeal judge's case is assigned, the situation is not quite parallel. In theory, trial judges do not have a personal stake invested in their own decisions. They are supposed to make their best judgments on the law and facts of a case and pass on to the next case. If an appellate court reverses their decisions, it should be taken in stride. Neither their salary nor their term in office is directly affected by reversal or affirmance by a higher court. Thus, though a particular trial judge may feel pique at criticism or pleasure at approval, the system should not, absent more, call for recusal from cases unrelated to the appellate court judge's own because of fear of intimidation of the trial judge.

The issue must also be approached from the view of the appellate judge. Is there a reasonable fear that, regardless of the trial judge's position of relative immunity, the appellate judge would exact a "pound of flesh" from the trial judge, thus hurting the individual parties involved in separate litigation? It appears to the writer that while anything is possible, the lack of control by the higher judge over the lower and the paucity of cases wherein the appellate judge would review the decisions of the trial judge argue against drawing the invidious conclusion. This is not the situation as was seen in In re Tschirhart, 420 Mich 1201 (1984), where the lower court magistrate was under the direct administrative control of the higher court. Discretion should be used by the appellate judge in opinions dealing with the trial judge's work not to overly praise or condemn the latter.

In the absence of actual bias, deciding whether to recuse may also turn on whether the reviewing judge sits on a one-judge court or in a multi-judge court. In Michigan trial court opinions are reviewed by three-judge panels of the Court of Appeals. Where a panel reviewing the trial judge's decision is divided, any vote of the inquirer to affirm a decision of the trial judge presiding in the inquirer's own case would be suspect. Where there are 24 Court of Appeals judges it is relatively easy to substitute one for another, and the inquirer should recuse. Where the reviewing judge is in a one-judge court and does not recuse, the judge should take special care not to unduly praise or criticize the trial judge in opinions issued while the judge's case is pending.

Thus, with regard to current litigation in which the judge is a party:

  1. Absent actual bias or another clear reason, a Court of Appeals judge sued in one case is not per se disqualified from hearing another unrelated case where the lawyer for the judge or for the judge's opponent is engaged.
  2. The Court of Appeals judge should consider voluntary recusal to avoid an untoward appearance while the judge's own case is pending; if the judge decides the possible attribution of bias or prejudice is too attenuated to warrant recusal, the judge should advise all parties and their counsel of the relationship and seriously consider any subsequent request for recusal.
  3. While the judge's own case is pending, a Court of Appeals judge should recuse from appellate review of unrelated cases from the trial judge presiding in the appellate judge's own case.
  4. The judge's own case should have a finite life, and the ensuing disqualifications should be conterminous with it.

With regard to the situation where litigation is threatened, a more difficult case is presented. The general rule should be that absent the inherent disqualifying factors of actual personal bias or interest, or the sound discretion of the court in voluntary recusal, the community has the right to the decisions of its judges. In accord, JI-23; RI-52, recusal is not required when an unannounced candidate for a judicial position is appearing before a judge opponent. Further, the disqualification or recusal of a judge causes some, often substantial, dislocation of resources and this, too, should be avoided. Finally, where human parties and advocates litigate in a human system before human judges, the temptation for judge-shopping and forum shopping is great. If the threat of suit against a judge were grounds for mandatory recusal, the dockets would be increased by some unwarranted number (even if only one) of tactical strikes. An ethical rule should not unwittingly aid in that unethical practice.

No general rule in this situation has been asked for, nor is one needed. Absent actual bias or interest, the appeals judge should seriously consider recusal from cases involving the commercial bank and its lawyers. The reasons for this are that the litigation does not appear to be trivial by the judge's own actions, i.e., the judge and the judge's spouse have continued to pay their pro rata share of the real estate loan before and after the becoming a judge. The threatened litigation does not on its face seem to be based upon an attempt to judge-shop in the Court of Appeals. Recusal on that bank's cases does not appear to be one which will seriously impact the court's docket.

As to the lawyers for the bank, the litigation is sufficiently imminent, as there has been an ongoing dialogue between bank counsel and the judge, that the principles enunciated with regard to actual litigation should apply. Further, absent actual bias for or against the lawyers or parties, any recusal should end when the judge's personal litigation situation is resolved.

Finally, pursuant to MCR 2.117(B)(3)(b) an appearance of an attorney is deemed to be the appearance of every member of the law firm, and any attorney in the firm may be required by the court to conduct a court ordered conference or trial. Thus, the factors which govern the inquirer's recusal from unrelated cases in which the advocates for parties in the inquirer's own matter appear apply equally to appearances by other members of the advocates' firms.

Therefore, in a situation where litigation is threatened against a judge, no general rule is possible, since the seriousness of the threat, the facial legitimacy of the potential suit and other case-specific factors must be assessed. Where those factors are present, a judge should seriously consider recusal from cases in which the judge's lawyer or the lawyer for the judge's opponent appears.

 
     

 

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