NOTE: This opinion was reconsidered and has been replaced by R-20.
July 24, 1992
A lawyer whose law firm has cases pending before the various circuit court judges or has clients whose matters have not yet reached litigation but are expected in due course to come before any of the judges in the future, may represent the judges of the court in litigation for actions taken in the judges' official capacity, provided that the judicial clients and the other clients consent after consultation.
A member of a law firm currently representing judges of a circuit court who appears before the judicial clients in unrelated matters must disclose the judicial representation to all other parties.
References: MRPC 1.2, 1.4, 1.7; J-5; RI-108; CI-306; ABA i1331.
In J-5 we discussed disqualification issues when judges who are represented by counsel in litigation challenging actions taken in an official judicial capacity are scheduled to preside in an unrelated matter in which the judges' counsel appear for a party. J-5 held that while representation of the judicial clients is pending and counsel for the judicial clients appear before any of the judges in an unrelated matter, the judge should disclose the relationship to the parties and their counsel.
We are now asked to address the ethical duties of a lawyer whose law firm is asked by the judges of a circuit court to defend them in civil actions in state and federal court challenging acts taken in an official judicial capacity, when the law firm has cases pending before various circuit court judges and has clients whose matters may come before the judicial clients in the future.
Michigan practice, rules and decisions recognize a reciprocal duty of adjudicators and advocates regarding disqualification and recusal. For example, MCR 2.003(B) sets forth standards for mandatory recusal of judges in certain circumstances, but also provides that, even for the mandatory recusal situation, a motion be made by the advocate for recusal, MCR 2.003(A) and (C). R-3 addresses personal relationships between an advocate and an adjudicator, such as dating or cohabiting, and places duties on both the advocate and the adjudicator to disclose the relationship to the other parties. JI-23 and RI-52 speak to judicial campaign opponents and place concurrent duties on both the incumbent judicial officer and the announced candidate advocate to avoid facing each other in the courtroom. These mutual duties better ensure the impartiality and integrity of the administration of justice. In those situations where the adjudicator might not be aware of circumstances that would raise recusal concerns, the advocate's duties to raise the issue serve the practical purpose of seeing that the issues are timely resolved.
As stated in JI-43 and J-5, a judge is normally not disqualified absent actual bias or such a likelihood or appearance of bias that the judge is unable to overcome the perception of partiality. One such instance where the likelihood or appearance of bias is strong enough to require automatic judicial recusal is where a judge and the judge's former law firm are defendants 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-39. Even so, the automatic recusal of the judge in those situations where the likelihood of bias of the judge
is strong, does not relieve the judge's lawyer of ethical obligations to other clients.
Cases and opinions discussing the disqualification of a judge when the judge's own counsel appears before the judge in unrelated matters sometimes turn on whether the representation is of the judge personally or in an official capacity, CI-306; Yorita v. Okumota, 643 P2d 820 (Haw 1982), or whether the law firm is charging the judge regular rates, Narro Wholesale Inc v. Kelly, 530 SW2d 146 (Tex 1975). We find no such criteria in the lawyer ethics rules, and thus such distinctions are not helpful to the lawyer in determining whether to undertake the judicial representation.
Advocates have separate duties which mitigate against relying totally on judicial disqualification when conflicts arise. For instance, a lawyer may not associate as co-counsel with a lawyer in another firm or offer or accept a referral from a lawyer, when one of the reasons for associating with or referring to the particular lawyer is to instigate judicial recusal, JI-44.
For all these reasons, J-5 does not resolve the lawyer's dilemma when asked to represent the judicial clients.
MRPC 1.7(a) prohibits the lawyer from undertaking representation of the judges if the law firm currently represents, even in unrelated matters, the interests of any of the claimants in the judges' case, unless the lawyer reasonably believes the representation would not be adversely affected and both clients consent. Undertaking the judges' case would be "directly adverse" to the interests of those clients, and the propriety of the lawyer undertaking representation of the judges in those circumstances must be evaluated on a case by case basis.
MRPC 1.7(b) prohibits the lawyer from representing the bench if representation of the judges will be materially limited by the lawyer's responsibilities to other clients, third parties, or the lawyer's own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the clients consent after consultation.
RI-108 posed the situation in which a lawyer represented two separate and distinct clients in unrelated domestic relations cases, but when the cases were consolidated on appeal, the lawyer was faced with the duty to advocate and argue truly diametrically opposed and adverse positions, even though the clients and their cases were unrelated. In that case we held that a disinterested lawyer could not reasonably believe that the representations would not be adversely affected, MRPC 1.7(a)(1) and MRPC 1.7(b)(1), and therefore the lawyer was required to withdraw from both representations. Similarly, if in this inquiry the law firm currently was representing another client before the same court in which the judges' litigation would be presented, in a matter which would require advocacy of a position diametrically opposed to that which would be argued on behalf of the judges, the law firm could not undertake representation of the judges.
Other than the circumstance raised by RI-108, representation of clients before other courts will not affect the lawyer's representation of the judges. Likewise, we do not foresee a circumstance under which the representation of other clients in matters presided over by the judicial clients would materially limit the lawyer's ability to render effective representation to the judges.
We now address the reverse situation, i.e., whether the representation of the judicial clients will "materially affect" the law firm's representation of other clients.
The representation of clients whose matters do not involve litigation would not be materially affected by the law firm undertaking representation of the judicial clients, and absent other factors should not prevent the representation of the judicial clients.
However, in a litigation setting if a client's advocate is the judge's lawyer in a separate matter, the judge's partiality may reasonably be questioned by the other party, resulting in challenges and grounds for
appeal. A lawyer whose firm is held in such esteem that its services are desired by the judicial clients, may reasonably be presumed to be credited with more credibility, more competence, and more familiarity than the opposing advocate. In J-5 we observed:
"To a member of the public who is before the court as a party in a lawsuit on the opposite side of the judge's lawyer, that party may well believe that the judge's lawyer carries esteem and approval by the Court beyond that of his/her own lawyer and that such esteem or approval will inure to the adversary's advantage.
"Beyond a subjective feeling of disadvantage, the party might have other possible, albeit unlikely, concerns. Are the lawyers paid from the Court's budget? If so, might there be a temptation to hold down billings to the Court, in hope of an exchange wherein the lawyer receives a favored treatment on matters before the Court? What about the lawyer-client relationship itself? We know it is privileged and can involve the most sacrosanct secrets. Is it not possible that in defending a judge, the judge might tell the lawyer some secrets that might give the lawyer great leverage in litigating before that judge. Some of these concerns may seem far-fetched to a judge dedicated to fairness and impartiality. Nonetheless, they may well cause an adversary of the judge's lawyer to feel considerably disadvantaged. We think these are things to be taken into the judge's calculus in weighing the decision of whether to recuse."
To avoid such conclusions, the presiding adjudicator might overcompensate in "fairness" to the opposing party, in rulings, adjournments, or otherwise. Parties may conclude they "have it made" or contrarily that nothing will help them prevail. Confidence in the legal system is lost. These realities "materially limit" the lawyer's ability to represent other clients whose cases are pending, or in the future would be brought for adjudication before, the judicial clients.
The lawyer may not agree to represent the judicial clients if the lawyer has cases pending before, or if other current clients whose matters have not yet reached litigation are expected in due course to be presided over by, the judicial clients, unless a disinterested lawyer would reasonably believe the representation of the client would not be adversely affected, and the client consents. The lawyer will make this evaluation when the judicial representation is undertaken, and has a continuing duty to evaluate as the judicial representation and the law firm's representation of other clients proceed.
We can conceive of several situations in which the representation would not be adversely affected. In some cases the law firm may be able to delay a client's case during the pendency of the judicial clients' matter, without material adverse affect to the client or violation of MRPC 3.2 [expediting litigation], 3.4 [fairness to opposing parties] or 4.4 [litigation for purposes of delay]. Some clients' cases may be through trial and awaiting judgment; even if the eventual decision is appealed, the record has been established before the judges became clients. Some matters may be settled or unopposed. When these circumstances exist, we believe MRPC 1.7(b)(1) is satisfied, and the lawyer may seek consent of the client after full consultation regarding the circumstances, MRPC 1.2, 1.4, 1.7(b)(2).
Another instance in which the representation of other clients would not be affected is where the lawyer would represent the judicial clients in matters involving their judicial capacity, as opposed to matters involving the private conduct or personal matters of the judicial clients. 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. In such cases the judge's connection to the advocate does not reach the level to adversely affect the representation of the advocate's other clients.
ABA i1331 considered whether a law firm may represent various members of the judiciary in actions brought against them for official acts. After noting that there were sufficient judges available to allow rescheduling of the law firm's unrelated cases from the judges which the firm would represent, and noting that there were sufficient other lawyers with expertise to represent the judges, the opinion concluded that because of an "appearance of impropriety" the law firm could not appear before the judicial clients on unrelated matters while the judicial representation was pending. When facing circumstances where other presiding adjudicators were not readily available or other counsel was not readily available to the judicial clients, other jurisdictions have followed a "rule of necessity" to avoid disqualification of the judge, Reilly v. Southeastern Pennsylvania Transportation Authority, 479 A2d 973 (Pa Sup 1984), modified 489 A2d 1291 (Pa 1985).
The "rule of necessity" appears to have been applied in CI-1108, which considered whether a law firm representing 37 of 38 workers' compensation administrative hearing officers in challenging the constitutionality of legislation abolishing their positions could represent clients in unrelated matters before the hearing officers during the pendency of the litigation. Referring to ABA i1331, CI-1108 held that the law firm could continue to represent clients before the hearing officers, but that the hearing officers should use "good judgment and conscience" in determining whether to preside. Citing authority from another state, the opinion also required the law firm to disclose the representation of the hearing officer to other parties.
In CI-306 an assistant city attorney in an official capacity represented a judge who has been sued as a result of the judge's official acts. Although the opinion held the judge was not automatically disqualified from unrelated cases in which the assistant city attorney appeared absent actual bias, the opinion provided that the judge "may disqualify . . . if a litigant reasonably and in good faith questions the judge's impartiality." For a litigant to question the partiality of the judge, the litigant must be told about the relationship of opposing counsel and the adjudicator.
Therefore if the lawyer agrees to represent the judicial clients, the lawyer must disclose the judicial representation to opposing parties, allowing them an opportunity to seek recusal of the judge or disqualification of the lawyer. Since any disqualification of the lawyer is imputed to the lawyer's firm, other members of the lawyer's firm appearing before the judicial clients in unrelated matters must similarly disclose the relationship.