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Ethics Opinion

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March 26, 1997


    A lawyer who has served as mediator under MCR 2.403 may not thereafter preside as judge in a judicial proceeding between the same parties involving the same matter.

    References: J-6; RI-265; MCR 2.003(B), 2.403(D)(3); MCJC 1, 2B, 3C.


A lawyer in private practice served as a mediator pursuant to MCR 2.403. The lawyer has been elected judge and the same matter is pending on the judge's jury trial docket. Is the judge disqualified from presiding or may the issue be remitted?

The Michigan Code of Judicial Conduct requires that all judges maintain high standards of conduct in order to maintain and preserve the integrity and independence of the judiciary. MCJC 1. Judges must at all times observe and respect the law and conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judicial system. MCJC 2B. Accordingly, a judge should raise the issue of disqualification whenever the judge has cause to believe grounds for disqualification may exist under MCR 2.003(B). MCJC 3C.

MCR 2.003(B) sets forth certain enumerated grounds warranting judicial disqualification and states in part:

    "(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case, including but not limited to instances in which:

      "(1) The judge is personally biased or prejudiced for or against a party or attorney.

      "(2) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.

      "(3) The judge has been consulted or employed as an attorney in the matter in controversy.

      ". . ."

MCR 2.003(b)(1)(2) and (3) describe some of the circumstances in which a judge may be disqualified from hearing a matter, such as where the judge was consulted or employed as a lawyer in the matter. With the exception of a judge's "personal bias or prejudice concerning a party" stated in MCR 2.003(B)(1), MCR 2.003(D) permits remittal of disqualification provided all parties consent to the judges continued participation and the judge is then willing to hear the matter. J-6.

However, MCR 2.403(D)(3) states: "A judge may be selected as a member of a mediation panel, but may not preside at the trial of any action in which he or she served as a mediator." Emphasis added.

Therefore, judicial disqualification exists whether or not the action is tried before the bench or to a jury.

Because judges are in a unique position to influence the outcome of a case tried to a jury, there should be no distinction between a bench trial and trial by jury with respect to the judge's disqualification. Having served on a mediation panel, a judge cannot thereafter preside at the trial of any action in which the judge served as mediator. The Michigan Code of Judicial Conduct cautions judges against conduct that may be prejudicial to the administration of justice. MCJC 1, 2 and 3.

In RI-265, the committee opined that a lawyer who has served as a court appointed mediator under MCR 2.403 may not serve as an arbitrator in an arbitration proceeding between the same parties involving the matter that was mediated. RI-265 states in part:

    "The careful structuring of the mediation process as established under MCR 2.403 would be sacrificed if the provisions intended to ensure impartial decision-making could be circumvented by taking the matter to an arbitration forum and allowing an individual who participated as mediator to function as arbitrator."

Similarly, the careful structuring of the judicial process would be sacrificed if a person who served as a mediator in a matter is thereafter allowed to preside as a judge over the matter. MCR 2.003 does not permit remittal in such cases. A fundamental rule of constriction requires that where there is an apparent conflict between two rules, the specific controls over the general and the specific is to be viewed as an exception to the general rule.

MCR 2.403 is a special rule relating to a particular issue (i.e., disqualification of judges who have served as mediators) which preempts the general disqualification rule for impartiality. Therefore, a lawyer who has served as a mediator under MCR 2.403 may not thereafter preside as a judge in a judicial proceeding between the same parties involving the same matter.



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