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.
December 13, 1993
It is not ethical for a full-time district court lawyer magistrate, probate court lawyer referee, or circuit court lawyer referee to engage in the private practice of law.
A part-time district court lawyer magistrate, probate court lawyer referee or circuit court lawyer referee may ethically engage in the private practice of law, so long as:
The private law practice does not violate any relevant statutes and does not result in frequent disqualification of the lawyer as judicial officer;
The prestige of judicial office is not used to advance the private practice of the lawyer;
The magistrate or referee does not act in a judicial capacity in cases where the magistrate or referee participated personally and substantially as private practitioner, and does not represent a private client in a matter in which the magistrate or referee acted personally and substantially as a judicial officer;
Information gained as a judicial officer is not used or disclosed by the magistrate or referee for any other purpose not related to judicial duties, and client confidences and secrets obtained from the private practice are not disclosed or used by the judicial officer without the consent of the client; and
The representation of a client is not materially limited by the duties of the lawyer as judicial officer, unless a disinterested lawyer would reasonably believe the representation would not be adversely affected and the client consents after consultation.
References: MCJC 5C(7), 5F, and 6; J-2; JI-10, JI-19, JI-29, JI-42; RI-1; MCR 6.003, MCR 9.201; MCL 600.562, MCL 600.821, MCL 600.8203, MCL 600.8525.
An opinion has been requested of the Committee which addresses the propriety of magistrates and/or referees in the circuit, district and probate courts of the state to practice law. The following issues have been raised:
May a lawyer employed full-time as a magistrate in a district court, or as a referee in a circuit court or probate court, ethically engage in the practice of law?
If such practice constitutes a violation, is there a different result for part-time magistrates or part-time referees?
Does the nature of the employment relationship make a difference in the determination of full-time status, if full-time status as a lawyer magistrate or referee precludes the practice of law? In this context, the reference is to whether the individual is paid as a contractor with no benefits versus being "on the payroll."
If a full-time lawyer magistrate or referee may engage in the practice of law, what safeguards in terms of notice to litigants appearing before the magistrate or referee should be employed to avoid conflict or the appearance of ethical conflict?
If a lawyer magistrate or referee may engage in the practice of law during the time period of employment, is there any restriction on the jurisdictions within which they might practice?
Does Canon 6 require either part-time or full-time magistrates and referees to file financial reports with the State Court Administrative Office?
I. May a lawyer employed full-time as a magistrate in a district court, or as a referee in a circuit court or probate court, ethically engage in the practice of law?
The Michigan Code of Judicial Conduct is applicable to magistrates and referees. MCR 6.003 and MCR 9.201; JI-10, JI-19, JI-29. MCJC 5F states:
In Formal Ethics Opinion J-2 we stated:
"A judge may, without compensation, provide limited legal advice or counseling to members of the judge's immediate family, but may not act as their advocate or negotiator, or make appearances as counsel for the family members."
Because the Committee does not have the jurisdiction to resolve questions of law, this opinion does not provide an exhaustive review of the statutes and case law governing the performance of judicial officers. While certain statutes which come to mind have been cited, there may be others which govern a determination as to whether the behavior at issue is appropriate.
Various provisions of the Revised Judicature Act address factors of law by full-time judges. MCL 600.562 flatly precludes the practice of law by circuit judges in any court of the state and further forbids partnership by a circuit judge with a law partner practicing in the same circuit. MCL 600.8203 states that district judges shall not engage in the practice of law other than as a judge. MCL 600.8525 expressly excludes magistrates in the district court for the district in which the lawyer serves as magistrate. It further precludes a person appointed as a magistrate in the thirty-sixth district from engaging in the practice of law altogether. MCL 600.821 allows for the practice of law by certain probate judges, however the provisions of the statute effectively preclude the practice of law by full-time magistrates and referees in either circuit, district or probate court to practice law without violating the Michigan Code of Judicial Conduct.
II. If such practice constitutes a violation, is there a different result for part-time magistrates or part-time referees?
In considering those individuals who act as part-time quasi-judicial officers, a different result is required. Part-time district court magistrates are allowed to practice law, but not in the district where they serve. There are provisions within MCL 600.821, the statute governing the practice of law by probate judges, which allow for the practice of law by part-time probate judges. The Committee presumes that because there are no part-time district or circuit judges in the State of Michigan, no such provision was made for them. The Committee sees no reason why part-time circuit or probate court quasi-judicial officers should be treated differently from part-time probate judges. Moreover, other statutes which contemplate the appointment of lawyer referees on a casual or part-time basis seem to imply that the appointee will not relinquish the private practice in the jurisdiction being served or elsewhere.
With that in mind, it is then appropriate to examine JI-42 which addressed inter alia the issue of whether a part-time probate judge could continue to practice law with law partners. There, the Committee opined that a part-time probate judge could continue to practice law with law partners, however, the judge could not practice in the judge's own court nor could the judge represent anyone in connection with any matter in which the part-time judge participated personally and substantially as judge, unless all of the parties consented after consultation. In any matter in which the judge would be disqualified, the judge's law firm would also be disqualified unless the judge were screened from the matter, apportioned no part of the fee and written notice was given to the appropriate tribunal. The same constraints should apply to part-time referees in the probate court and by virtue of earlier reasoning in this opinion, part-time referees in circuit court and to the extent not addressed by statute, part-time magistrates in district court. See, MRPC 1.11, 1.12; RI-1; JI-29, JI-42. Part-time magistrates and referees are also subject to the provisions of MCJC 5C(7) which provides that information acquired by a judge in a judicial capacity should not be used in financial dealings or for any other purpose not related to the judge's judicial duties.
Finally, additional practical steps should be taken to avoid the appearance of impropriety. One example would be the removal of signs or nameplates and other indications of the quasi-judicial status of part-time quasi-judicial officers when they are conducting trials as private attorneys in the same jurisdiction so that prospective jurors do not accord greater credibility to them because of their quasi-judicial status. Another suggestion would be that participants in trials refrain from informing jurors of any quasi-judicial role played by the lawyers involved, whether in the jurisdiction in which the lawyers are serving or otherwise. See MRPC 8.4(d) and MRPC 7.1.
III. Does the nature of the employment relationship make a difference in the determination of full-time status, if full-time status as a lawyer magistrate or referee precludes the practice of law? In this context, the reference is to whether the individual is paid as a contractor with no benefits versus being "on the payroll."
The answer to this question depends upon issues of law which are not within the province of this Committee to address.
IV. If a full-time lawyer magistrate or referee may engage in the practice of law, what safeguards in terms of notice to litigants appearing before the magistrate or referee should be employed to avoid conflict or the appearance of ethical conflict?
Because it is the opinion of this Committee that full-time magistrates and full-time referees may not engage in the practice of law, the issue of safeguards in the event that they do practice law is moot.
V. If a lawyer magistrate or referee may engage in the practice of law during the time period of employment, is there any restriction of the jurisdictions within which they might practice?
Full time magistrates and/or referees may not practice law without violating the Michigan Code of Judicial Conduct. Part-time district court magistrates may not practice law in the district court for the district in which the magistrate serves. Part-time probate or circuit court referees may practice law in the district where they serve, however may only do so consistent with JI-29, JI-42 and RI-1.
VI. Does Canon 6 require either part-time or full-time magistrates and referees to file financial reports with the State Court Administrative Office?
The principle reason for the financial reporting requirements, to assure that judges do not receive forms of compensation intended to improperly influence their decisions, is a rational and practical requirement when applied to full-time judges since it is likely that except for investments only a lesser portion of a judge's income will come from sources other than the judicial salary. With part-time judges who practice law the likelihood is that various substantial and even a majority portion of income will come from nonjudicial salary sources and, unlike the situation with respect to the full-time judge, that is fully expected since the judicial position is only part-time.
Given the applicability of the Canons to full-time magistrates and referees, the financial reporting provisions of MCJC 6 do indeed apply to such individuals. Given the varied and peculiar nature of part-time referee and magistrate positions, it was not the intention of the drafters of MCJC 6 to require that private practitioners serving as part-time or casual referees or magistrates be subject to a requirement of filing detailed reports of their law practice income. The underlying policy behind the reporting requirement is that judicial office is intended to be a full-time occupation and judges should have to report income from other sources both to assure that the judges abide by the provisions governing campaign financing and to assure that the time devoted to other business does not detract from the time supposed to be spent in the judge's judicial capacity. While the latter consideration may arguably be just as relevant to an individual acting in a part-time judicial capacity, the reality is that its application is not practical.