February 22, 1996
A judge may accept pro bono legal services from the judge's sibling in the pursuit of a public policy issue pending in a case before another judge.
References: MCJC 5C(4); In Re Lawrence, 417 Mich 248 (1983).
A judge asks whether a circuit judge may receive pro bono legal services from a sibling lawyer in a pending case. The underlying lawsuit has been ongoing for over five years before another circuit judge. The inquiring judge is seeking a mandamus order directing the county board of commissioners to provide various alternative forms of relief to reduce or eliminate a longstanding jail overcrowding problem.
The issue before this Committee is not whether the judge may undertake the lawsuit, but simply whether the judge may be represented by a relative on a non-fee basis in pursuing the lawsuit.
There is no prohibition against a judge retaining a lawyer to represent the judge in a lawsuit or criminal proceeding. If anything, such an arrangement is somewhat favored over the judge representing himself or herself. Likewise, there is no prohibition against a judge retaining a relative to perform legal services as long as other ethical provisions affecting the lawyer's judgment are observed.
The remaining issue is whether the representation may be on a pro bono basis. This Committee concludes that it may. MCJC 5C(4) states:
"(4) Neither a judge nor a family member residing in the judge's household should accept a gift, bequest, favor or loan from anyone except as follows:
"(a) A judge may accept a gift or gifts not to exceed a total value of $100, incident to a public testimonial; books supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice.
"(b) A judge or a family member residing in the judge's household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants.
"(c) A judge or a family member residing in the judge's household may accept any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before the judge, and, if its value exceeds $100, the judge reports it in the same manner as compensation is reported in Canon 6C." Emphasis added.
Clearly, a judge may accept a gift or favor from a sibling under MCJC 5C(4)(b). The ethics provisions do not distinguish between types of gifts and/or favors and this Committee declines to do so in this instance.
The ABA Model Code of Judicial Conduct contains a provision similar to MCJC 5C(4)(b), however, and expands it to refer to the underlying basis for constraints on gifts and favors, to wit: the appearance of inappropriate influence. ABA Model Code of Judicial Conduct, Section 4D(5)(d) and (e) state:
"(5) A judge shall not accept and shall urge members of the judge's family residing in the judge's household, not to accept, a gift, bequest, favor or loan from anyone except for:
". . .
"(d) a gift from a relative or friend, for a special occasion, such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship;
"(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under Section 3E." Emphasis added.
The commentary following Model Section 4D(5)(d) states that a gift to a judge or a member of the judge's family living in the same household that is excessive in value raises questions about the judge's impartiality and the integrity of the judicial office, and might require disqualification of the judge where disqualification would not otherwise be required. The Michigan Court Rules and Michigan Code of Judicial Conduct do not require disqualification because disqualification is remittable in all cases, however, the reasoning is still applicable to the instant case because, at the very least, the fraternal relationship and the lawyer-client relationship would be grounds for disqualification regardless of the nature of the fee arrangement. If the judge in this case would be disqualified from presiding over cases involving his own counsel, the judge's impartiality and integrity would not be an issue.
Were it not for the fraternal relationship, the pro bono nature of the services rendered in the case might be considered an improper gift or favor unless they came within the purview of MCJC 5C(4)(c). See also In re Lawrence, 417 Mich 248 (1983), a judge may not accept free legal services from a lawyer and assign that lawyer indigent criminal cases; Tennessee Op 91-8, a judge may not accept free legal services from law firm even if firm agrees to cease practicing before judge.
The circumstance described by the inquirer is uniquely characterized by the familial relationship between the judge and the lawyer offering the services. As such, the acceptance of those pro bono legal services is not unethical.