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Ethics Opinion

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SEE JI-133, which effectively supersedes JI-101.

JI-101

June 6, 1995

SYLLABUS

    A judge whose spouse is an assistant prosecuting attorney must disclose the relationship on the record whenever the prosecutor's office appears in a matter pending before the judge, the prosecutor appearing should disclose whether the spouse has participated personally and substantially in the pending matter, and the judge is recused unless the parties voluntarily ask the judge to proceed.

    A judge should not offer or propose any waiver or consent form to the parties considering the judge's disqualification.

    References: MRPC 1.11, 1.12; J-4, R-3, C-216; CI-605; JI-31; MCR 2.003(B).

TEXT

A district court judge in a five judge district is married to an assistant county prosecutor practicing in the same jurisdiction.The spouse, an assistant prosecutor, serves as Chief Trial Attorney in an office of 16 lawyers.The duties of that position include supervising the investigation, preparation and trial of felony cases in circuit court, supervising felony dispositions, waivers, and trial scheduling of juvenile offenders into circuit court, direct supervisory control over the day-to-day activities of criminal investigators. The spouse is barred from directing, participating in or supervising any case assigned to the judge, and from supervising other assistant prosecuting attorneys appearing in cases assigned to the judge.During any temporary absence from the office of the two more senior prosecutors, and during which time the spouse would be in charge, cases would not be assigned to the judge.

The judge asks whether judicial disqualification may be avoided in cases in which the prosecutor's office appears if the following procedure is followed:

  1. the assistant prosecuting attorney spouse does not participate in cases assigned to the judge;
  2. the judge discloses the personal relationship to all parties and counsel;
  3. the parties and counsel do not object to the judge presiding.

MCR 2.003(B)(5) forbids a judge from hearing a case when one of the advocates is within the third degree of consanguinity or affinity to the judge.The prohibition is mandatory, and may not be waived by the parties and counsel.

Several ethics opinions have addressed the situation where a relative of a presiding judge is employed by an advocate's firm, but is not the advocate appearing in the matter. R-3 opined that a judge is disqualified from presiding over a case where the law firm of the judge's spouse appears as an advocate for either party, unless the parties request the judge to continue presiding in the case after disclosure of the relationship and consultation. In accord, C-216, CI-605.

Formal Opinion J-4 further explained the recommended procedure when a presiding judge had a relative working in an advocate's law firm.The opinion resolved that the judge should disclose the relationship on the record, the law firm should disclose whether the judge's relative has participated personally and substantially in the matter, and the judge is recused unless the parties ask the judge to proceed.

Therefore, when a relative of the judge is employed by an advocate's firm appearing in the matter, the judge is recused unless the parties affirmatively ask the judge to proceed in the matter.

It is important that the decision of the parties regarding the judge's recusal be formed without any influence from the presiding judge.Any waiver proposed by the presiding judge, such as that proposed by the inquirer, does not allow for the voluntariness of the parties' consent, and could be construed by parties as pressure to consent.This issue is addressed in ABA Model Code of Judicial Conduct Canon 3F, Remittal of disqualification, which states in pertinent part:

    ". . . If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding . . . . " Emphasis added.

The commentary states in pertinent part:

    "To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule."

Therefore, the judge should not propose a waiver to the parties.

In determining whether to consent to the judge's participation in the matter, the parties and their counsel need to evaluate whether the judge's spouse has participated in the pending matter.The greater the participation of the judge's spouse, the less likely the parties will consent to the judge's participation.JI-31 concluded that a judge should not supervise the performance of or review judicial decisions of the judge's spouse.MCR 2.003(B)(5) would seem to stand for the principle that a judge should not review the work of a lawyer spouse in a matter.

The supervisory structure of the prosecutor's office becomes pivotal in determining which cases the prosecutor spouse has had a "personal and substantial participation." In R-3 we noted:

    "Similar questions can arise where one or both spouses are employed by a governmental entity rather than by a private firm, although analysis should be the same.CI-1130, decided under the Code, dealt in part with the question of whether Spouse B could represent criminal defendants who were being prosecuted by lawyers who were supervised by Spouse A in the prosecutor's office.The opinion concluded that, because of the supervisory structure in the office, Spouse A was effectively acting in an adverse capacity to Spouse B, a situation which was held to be prohibited by the Code.Such a situation would not, as noted, be absolutely prohibited by the MRPC, however disclosure to the clients and consent would be necessary.The continued significance of CI-1130 under the MRPC is its recognition of the importance of the supervisory structure in the prosecutor's office, which may or may not be distinguished from that of a private firm."Emphasis added.

The term "personal and substantial participation" is one used in the Michigan Rules of Professional Conduct in describing conflict situations of public lawyers and public officials.See MRPC 1.11, 1.12.The term is described at length in JI-34 and RI-11, and those descriptions will not be repeated here.We note, however, that the term means personal involvement to an important, material degree in investigations about or deliberations on the transactions and facts in question, and includes any participation on the merits of a matter.Many of these activities are conducted before litigation is filed, and thus before the prosecutor knows which judge will be assigned to hear the matter.Further, the facts provided indicate that the spouse directly supervises all case investigators, and thus is involved in the collection of evidence.Thus there is no way to screen the prosecutor spouse for district court matters which might in the future be assigned to the judge spouse.

 
     

 

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