April 7, 1995
A new judge is not per se disqualified from presiding in a matter in which a party is a former or current client of a law firm in which the judge was a member within the past two years, provided that the party was not a client of the judge within the past two years, the judge rendered no legal services to the client on the pending matter, and the party is not represented in the pending matter by a law firm in which the judge was a member within the past two years.
References: MCJC 1, MCJC 2A, MCJC 3C; J-4; JI-20, JI-34, JI-39; CI-1079; MCR 2.003(B); People v. Delongchamps, 103 Mich App 151 (1981).
A new judge's former law firm regularly represents large corporate clients whose interests regularly come before the court on which the judge sits. The judge asks whether disqualification is required in a proceeding in which a party to the proceeding has retained some legal services of the judge's former law firm within the preceding two years, if the judge's former law firm is not the party's advocate in the case pending before the judge.
MCJC 3C states:
"A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(B)."
MCR 2.003 states in part:
"(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; . . . ." Emphasis added.
The term, "representing a party" must be interpreted to further judicial independence and avoid the appearance of impropriety, without imposing an excessive burden on the judge. MCJC 1, MCJC 2A.
Given its ordinary meaning, the term "representing a party" is unqualified as to subject matter. Had a more restrictive application of this provision for disqualification been intended, presumably clear language describing the limitation would have been used.
MCR 2.003(B)(3) and (4) should be read together and each given distinct meaning, if possible. Thus, it must be concluded that the drafters intended to provide automatic disqualification within MCR 2.003(B)(3) for prior exposure to the issues in controversy and require recusal for recent associations related to parties and lawyers by application of MCR 2.003(B)(4). Unlike the interminable recusal provision of MCR 2.003(B)(3) which is based on a judge's prior involvement in legal or factual issues, the two-year disqualification requirement of MCR 2.003(B)(4) is premised upon suspect professional and personal relationships. MCR 2.003(B)(4) acknowledges that a judge's recent relationship with either an advocate or a party may be intrinsically hazardous.
The relationships addressed in MCR 2.003(B)(4) are inherently suspect because of likely financial entanglements and the appearance of bias. For example, a newly elected or appointed judge may have completely severed financial interests in the business of a law firm or in the outcome of a former client's matter. Disqualification under the court rule is not obviated by the advocate's status as associate rather than partner, or because the advocate was not a member of the firm at the time the judge was a member. J-4; see also, JI-20, JI-39.
Conversely, the unlikelihood that financial concerns would affect a new judge who had been an assistant prosecutor led this Committee to exclude former government lawyers from application of this two-year disqualification provision. In JI-34 we concluded: "MCR 2.003(B)(4) is not necessary for former government lawyers because they do not have conflicts of interest caused by lingering economic entanglements with the parties or other lawyers involved in ongoing litigation." See also, People v. Delongchamps 103 Mich App 151 (1981).
CI-1079 concluded in part:
- The judge is permanently disqualified as to any case which may be brought by the lawyer representing a former client of the judge, if the judge was consulted as a lawyer on the matter in controversy.
- The judge is disqualified as to a new matter if he or she was a lawyer for the litigant within the preceding two years.
- The judge is disqualified if the judge was a member of the firm representing a party within the prior two years, even if the judge did not personally represent the client.
". . .
"A judge is permanently disqualified to hear cases involving a former client to whom the judge rendered legal advice on the matter in controversy, regardless of the amount of advice offered by the judge when as a lawyer. If a new matter involving a former client is presented to the judge and is one on which the judge had not given advice, a two-year period of disqualification is required, after the time when the judge no longer has a continuing financial interest."
Therefore a judge is disqualified under MCR 2.003(B)(4) if the judge was a lawyer for the party within the preceding two years, or if the judge was a member within the past two years of the appearing firm. Under MCR 2.003(B)(3), the judge would be disqualified if the judge, not the judge's firm, formerly rendered legal advice to a party in the pending matter.