June 6, 1995
If a lawyer appearing before an administrative hearing officer has previously represented the adjudicator or a member of the judge's household on legal matters, the adjudicator and the lawyer must disclose the prior representation to all other parties and their counsel.
Whether a judge should recuse in such matters is a question determined on the merits of any motion for disqualification which may be filed.
References: MCJC 3C; MRPC 8.4(a)-(c); J-5; JI-39, JI-43; MCR 2.003(B) and (C); Grievance Administrator v. Bird, ADB 92-95-GA (10/16/92); Grievance Administrator v. Kruse, ADB 93-211-GA (12/7/93).
The Committee has received an inquiry as to how long after the fact must an administrative law judge inform the lawyers and the parties in a matter before that judge, that one of the lawyers in the matter previously represented a family member of the judge.
We have repeatedly opined that, although administrative hearing officers perform adjudicative functions, their conduct is governed by the Michigan Rules of Professional Conduct not the Michigan Code of Judicial Conduct. See CI-351, CI-633. The Michigan Rules of Professional Conduct, however, do not address adjudicative disqualification, and the rules on lawyer disqualification involve conflicts of interest between a lawyer's duty to clients and others. Since administrative hearing officers have no "clients," the lawyer disqualification rules are not helpful in resolving this inquiry.
The judicial disqualification rules have frequently been used to guide administrative hearing officers in these matters. Under MCJC 3, a judge should raise the issue of disqualification whenever the judge has reason to believe that grounds for disqualification may exist under MCR 2.003(B)(2) which states: "A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in which the judge is personally biased or prejudiced for or against a party or attorney."
J-5 addressed ethical problems when an advocate appearing before a judge concurrently represents the judge in the judge's official capacity in unrelated matters, and concluded that the judge was required to disclose the representation to the parties and advocates while the concurrent representation was pending, but that recusal was not mandatory in all cases. The opinion stated:
"Here, although the judges of the court are being sued for acts in an official capacity, they are represented by private counsel, not a "public lawyer." When a lawsuit is filed against a judge for acts or omissions in an official capacity, the judge might not have personal choice of counsel, might never discuss the lawsuit directly with the counsel selected, does not personally pay the counsel, and might not even be apprised of the details of the matter as it progresses. Instead, counsel may be selected and coordinated by an insurer or at public expense. Representation of judges in their official capacity rarely involves the sharing of confidences and secrets of the judicial clients that would give the judges' advocate an advantage when appearing before the judges in unrelated matters."
JI-39 states that when a judge is codefendant with the former law firm in a malpractice action, the judge may not preside over any matter in which a member of the former law firm, or a member of the law firm which represents the judge and the former law firm in the malpractice action appears, until the malpractice action is resolved.
JI-43 states that when a judge's former real estate partnership is sued for actions taken while the judge was a partner, and the judge's lawyer appears before the judge as advocate for another client in unrelated litigation, the judge should disclose the relationship to the parties.
". . . [W]hen 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 [in unrelated cases where the judge's lawyer appears as advocate], 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."
It is possible that when a lawyer has represented a judge's family member and then later appears before that judge in another matter, that a non-interested person could believe that the judge would be personally biased or prejudiced for or against that lawyer. People v. Lowenstein, 118 Mich App 475 (1982), cited in the comment to J-5, which explains that the test is not whether actual bias exists, but whether there is a likelihood of bias or an appearance that the judge is unable to hold the balance.
Two disciplinary cases involve whether a lawyer has a responsibility to disclose to opposing parties prior representation of the presiding judge's relatives in unrelated litigation.
In Grievance Administrator v. Bird, ADB 92-95-GA (10/16/92), respondent pled no contest to the imposition of a reprimand for violating MCR 9.104, in that respondent appeared in a divorce matter without disclosing to opposing counsel that respondent had previously represented the spouse of the presiding judge in unrelated matters. The complaint does not reveal the nature of the spouse's matter, when it occurred, or how long it had been over. Although the complaint originally charged violations of MCR 9.104 and MRPC 8.4(a)-(c), the stipulated disposition only cited MCR 9.104. Since the disposition was not contested, there were no findings of fact and the case is not precedential.
Grievance Administrator v. Kruse, ADB 93-211-GA (12/7/93), was dismissed with prejudice by stipulation. The respondent had been charged with appearing before a judge who had been the lawyer's client six months previously in an unrelated matter, without disclosing the prior relationship to opposing counsel. The stipulation indicates that the respondent agreed to accept an admonition. Again, because there were no findings of fact and the disposition was stipulated, there is no indication of what the Attorney Discipline Board would have ruled.
Neither disciplinary case is precedential, since one was resolved by a no contest plea, while the other was stipulated. Ethics rules are not cited for the resolution of one matter, and the only ethics rule cited for the other is MRPC 8.4, the general misconduct rule. Also, the facts of the two matters are not completely revealed to allow competent analysis.
Several precepts can be discerned from these cases and the relevant ethics authorities. First, the spousal relationship, in and of itself, is not sufficient to require disclosure or disqualification. There is no presumption that spouses will breach confidentiality or that spouses are able to improperly influence judicial decision-making. See, MRPC 1.8(i), RI-12. Even MCR 2.003(B)(6) only pertains to a spousal financial interest in the party in the matter pending before the judge.
Second, when the unrelated litigation is being handled concurrently with representation of the presiding judicial officer, disclosure must be made to parties and opposing counsel.
Third, disqualification is mandatory if the representation of the judge is in a suit of a substantial nature, not spurious nor used as a tactic to induce disqualification, and filed against the judge personally. If the judge's personal ethics or financial interest are directly at stake in the matter, disqualification would be required. If the judge's representation is in an official capacity, disqualification is not per se required.
In the current inquiry, the former representation of the spouse involved the spouse's personal employment situation. The administrative hearing officer was not involved in that matter as a party, witness, beneficiary of the relief sought, or otherwise. The spouse's representation has been complete for more than a year. It is not known whether the spouse's representation was concluded before the pending matter was undertaken. Under these circumstances, the administrative hearing officer and the lawyer have a duty to disclose the prior representation to opposing parties and their counsel. Whether the judge should recuse is a question determined on the merits of any motion for disqualification which may be filed pursuant to MCR 2.003(C).