October 20, 2000
The Michigan Code of Judicial Conduct would prohibit the Friend of the Court from hiring lawyers to provide legal representation to plaintiffs in adversarial proceedings for the establishment of paternity and support order. Although judges are not per se disqualified from hearing matters when lawyers who are court employees appear before them in adversarial proceedings for the establishment of paternity and support orders, the appearance of impropriety would mandate disqualification.
References: MCJC 2A; R-15; JI-29; JI-50; MCL 552.454(1); MCL 722.714(4).
Inquiry has been made as to whether there is a violation of the Michigan Rules of Professional Conduct and/or the Michigan Code of Judicial Conduct when lawyers who are employees of the circuit court represent one of the parties in an adversarial proceeding for the establishment of Paternity and Support orders.
Pursuant to Title IV-D of the Social Security Act, as administered in the State of Michigan by the State Office of Child Support, county prosecutors have been providing legal services for the establishment of Paternity and Child Support orders. Pursuant to the Paternity Act, MCL 722.714(4) and the Family Support Act, MCL 552.454(1), county prosecutors are mandated to represent the plaintiff in certain circumstances. The Committee has been asked to assume lawyers, hired by the Friend of the Court, would perform these statutory duties. These lawyers would be hired, supervised and receive a salary from the Friend of the Court. As employees of the Friend of the Court, these lawyers would be considered employees of the local circuit court where they practice and thus technically employees of the judges before whom they would be advocating.
It should be noted that this Committee is not a fact-finder and does not resolve questions of law, but merely interprets the Michigan Rules of Professional Conduct to proposed transactions. Thus, the Committee does not opine as to whether the proposed change in procedure is permissible given the statutory mandate that the prosecuting lawyer shall act as the lawyer for the parties under the Paternity Act and the Family Support Act. MCL 722.714(4); and MCL 552.454(1). This opinion will only address the ethical implications of doing so.
The Committee has opined in the past that merely because a lawyer is employed by a court before which he/she practices does not necessarily violate the Michigan Rules of Professional Conduct, JI-50. Moreover, the fact that a judge hears a case presented by a court employee also does not per se disqualify a judge from hearing such matters, JI-29, JI-50. In this situation, however, the appearance of impropriety would mandate disqualification of the judge.
Pursuant to MCJC 2A, public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. Consequently, a judge must avoid all impropriety as well as the mere appearance of impropriety. Here, the judge would be hearing cases as the employer of a lawyer where the issue before the court is the exact issue for which the lawyer was hired by the court to handle. Although there may be no showing of actual bias or prejudice by the judge, the question of appearance must be considered. R-15. The defendant, having no other public entity available to provide these services, may view the entire proceeding as unfair and predetermined. Thus, although there is no per se prohibition, based upon the review of these facts, the judge is prohibited from presiding.