July 25, 2008
The Committee has reconsidered Opinion R-14, which requires that a lawyer make disclosure to opposing parties and counsel of the fact that the lawyer represents a judge when representing other clients before that judge in unrelated matters. This Opinion is written to correct conclusions or inferences in Opinion R-14 regarding disclosure, and to continue analysis of the subject to its ultimate conclusion that if the represented judge does not raise the subject of disqualification when required, the lawyer will violate Rule 8.4(e) by continuing the representation in the unrelated matter.
References: MRPC 8.4(e), 1.6, 1.10, 1.16(a); MCJC 3C; Formal Opinion J-5; MCR 2.003; ABA Formal Opinion 07-449; ABA Informal Opinion i1477.
Opinion R-14 addressed the narrow subject of whether a lawyer's1 representation of judicial clients in their official capacity2 would "materially affect" representation of other clients in matters before them. The discussion appears to have focused on whether the simultaneous representation would be a conflict of interest under the Michigan Rules of Professional Conduct ("MRPC") 1.7. The opinion was issued contemporaneously with Opinion J-5, which considered the ethical obligations of a judge who is represented by counsel appearing before that judge in an unrelated matter3. In Opinion J-5, the Committee interpreted Michigan's Code of Judicial Conduct ("Judicial Code") Canon 3C as requiring the judge to consider recusal, but obligating the judge to disclose the lawyer/client relationship to all parties in the matter as an issue of disqualification.4 Michigan Court Rule, MCR 2.003, referred to in Judicial Code Canon 3C, covers the subject of disqualification of a judge. Under MCR 2.003(A), either a party, by motion, or the judge may raise the issue of disqualification.
It is important to observe that Opinion J-5 accepted the conclusion that representation of the judge by counsel now appearing before the judge on a matter for another client would require raising the issue of disqualification,5 and that it would be the obligation of the judge to raise it. In other words, the fact of the representation itself creates a situation in which impartiality may be reasonably questioned. The ultimate fact–whether there is bias or prejudice concerning the lawyer–remains to be determined, but the issue must be raised. Citing Opinion J-5, Opinion R-14 stated that if the client's advocate is the judge's lawyer in a separate matter, the judge's impartiality could be reasonably questioned by the other party, leading to challenges and grounds for appeal, thereby creating a material limitation6 on representation of the other client, and thus presenting a conflict of interest under MRPC 1.7(b).
We agree that representation of the judge presents a conflict of interest in representing a client whose matter is to be heard by the judge, under MRPC 1.7(b). Resolution of that conflict requires the lawyer to form a belief that the conflict will not adversely affect the representation of the non-judicial client; and the non-judicial client to consent.7 We conclude that opportunity exists for consent by the non-judicial client to the conflict when the representation of the judge is in an official capacity because the representation of the non-judicial client is not per se adversely affected.8
Opinion R-14 recognized that resolving this conflict of interest with the non-judicial client did not fully answer the problem–how to deal with the judicial client, and, particularly, with Opinion J-5. Opinion R-14 concluded:
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. Emphasis added.
This conclusion is insufficient, at least, for several reasons: First, the lawyer may not be permitted to disclose information pertaining to the representation of the judicial client to third persons.9 Second, the lawyer is not subject to disqualification by an opposing party for having a conflict of interest between the lawyer's two clients–the issue of course is one of potential partiality by the judge. The lawyer's obtaining the consent of his non-judicial client to proceed does not in any way deal with the issues of "challenges and grounds for appeal" Opinion R-14 cites as potentially adverse effects on the representation of the non-judicial client; or of the need for the judge to raise the issue of disqualification, as required by Opinion J-5. Third, and of greatest importance, disclosure of the judicial client representation to a third person, even if permissible, does not resolve the obligation of the judge to disclose a potential basis for disqualification. Only the judge can address that problem.
Because the judge is obligated to raise the issue of disqualification for the reason that it is required under Judicial Code Canon 3C, as Opinion J-5 concludes, then the judge's failure to do so would violate the Judicial Code. Disclosure by the judge's lawyer to the opposing party will not cure the judge's failure to comply with the Judicial Code.10 Independent knowledge of the judicial representation–even wide spread public knowledge -- does not cure the obligation of the judge to raise the issue of disqualification. The failure of lawyers for either party to move to disqualify the judge does not of itself violate any Rule of Professional Conduct, but continuing the matter before the judge will cause the lawyer to violate MRPC 8.4(e), which provides that it is professional misconduct to "knowingly assist a judge . . . in conduct that is a violation of the Code of Judicial Conduct or other law."11
To avoid violating MRPC 8.4(e), the judge's lawyer may make a direct contact with the judge to urge the judge to raise the issue of disqualification. Contact with a judge during the pendency of a matter must be carefully considered, as Judicial Code Canon 3A(4) forbids a judge from permitting ex parte communications concerning a pending or impending matter; and MRPC 3.5(b), similarly, forbids a lawyer from communicating ex parte with the judge concerning a pending matter. Although these rules would on their face seem to prohibit any direct communication, it is the opinion of this Committee that communication with the judge by the judge's lawyer in this situation for the limited purpose of requesting the judge to raise the issue of disqualification is not within the meaning of "communication about a pending matter" as intended by these rules. As long as the communication is limited to the subject of disqualification, the communication pertains to an independent matter–that of compliance with the Judicial Code–and not to the client matter itself.
If the attempt at remonstration of the judge fails, the lawyer who represents the judge has no alternative other than to withdraw from the representation that would cause the judge to violate Judicial Code Canon 3C and, thus, the lawyer to violate MRPC 8.4(e). Such a withdrawal is required by MRPC 1.16(a).12 It is this possibility that confounds the conflict of interest consideration under MRPC 1.7(b), since withdrawal from representing the judge or withdrawal from representing the non-judicial client during the pendency of a matter is certain to "adversely affect" the representation of the non-judicial client.
In situations where the representation of the judge is known independently to opposing counsel, it may be possible for the lawyers with their clients to agree to what would constitute a remittal of disqualification under MCR 2.003(D). As provided in the Court Rule, the agreement must be in writing and placed on the record. Such a solution does not conform to the Court Rule itself, however, and the Committee does not endorse this procedure, noting also that it is outside the Committee's jurisdiction to interpret the Court Rules.
In American Bar Association Formal Opinion 07-449, it is suggested that the lawyer agreeing to undertake representation of a judge should consider including in the engagement letter an agreement that the judge will offer disqualification and make appropriate disclosures as required by the Judicial Code when the lawyer appears before the judge on another matter; and an advance consent to disclosure to the fact of the representation in such an event. Neither of these precautions solves the problem caused by the judge's failure to make the disclosures, unless the engagement letter would authorize the lawyer to make the disclosures on the judge's behalf.
COMMENT: The Committee believes the circumstances in which a judge would refuse to offer disqualification would be extremely rare. This Opinion is written to correct conclusions or inferences in Opinion R-14 and to continue analysis of the subject to its ultimate conclusion, hoping in the process to sensitize both the bar and the bench to the unacceptable perplexity that could arise in such a circumstance.
1 The lawyer in Opinion R-14 was a private practitioner in a law firm, and this Opinion is limited to that context. This Opinion applies equally to any lawyer in the lawyer's firm, by application of MRPC 1.10. We do not address the situations in which (i) the lawyer is the state attorney general or other public attorney or their assistants under a legal duty to represent judicial officers in matters concerning their judicial office or duty, who are at the same time representing the state or their agencies before the judge; or (ii) a representation is of an entire bench–the Court itself. We would agree with the view expressed in American Bar Association Informal Opinion i1477 that recusal in all such cases would not be required.
2 Opinion R-14 applied to representation in an official capacity, and postulated that representation of a judge in such a capacity may involve factors that would mitigate against a conclusion that bias or prejudice existed based on the fact of the representation itself. Because Opinion R-14, which we reconsider here, addressed only the subject of representation in an official capacity, this Opinion speaks to the same circumstances. A lawyer's representation of a judge in an individual, personal capacity is the subject of ABA Formal Opinion 07-449, applying the Model Rules of Professional Conduct and Model Code of Judicial Conduct. We do not see any difference in result, however, in whether the representation of the judge is in an official or a personal capacity, as long as the rule applicable to the judge's conduct requires disclosure of the basis for possible disqualification.
3 Both Opinions R-14 and J-5 were issued by the same Committee on Professional and Judicial Ethics, and approved by the State Bar Commissioners as "formal opinions" of the State Bar of Michigan.
4 Canon 3C of the Michigan Code reads: "A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(B)." Emphasis added. The cited Court Rule provides that a judge is disqualified when the judge cannot impartially hear a case, and includes as a circumstance for such a disqualification when the judge is personally biased or prejudiced for or against a party. The Model Canons of Judicial Ethics adopted by the American Bar Association, as amended in February 2007, provide at Rule 2.11A: "A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned . . . ." Emphasis added. The Michigan Code and Court Rule are phrased to require the issue of disqualification to be considered. Opinion J-5 treats the Michigan Code as creating an obligation, not a suggestion, to raise the issue of disqualification, and we concur. The Committee does not regard the two approaches–the judge to disqualify or the judge to raise the issue of disqualification–as having a substantive difference.
5 Canon 3D of the Michigan Code provides that the disqualification may be remitted (waived) under a procedure described in MCR 2.003(D).
6 MRPC 1.7(b) forbids representation of a client if that representation would be "materially limited" by a lawyer's responsibility to another client, or to a third person, or by the lawyer's own interests, unless the lawyer reasonably believes the representation will not be "adversely affected" and the affected client consents after consultation. The phrase "material affect" used in Opinion R-14 is not used in the Rule, and is understood to have meant "material limitation". When the conflict would adversely affect the representation, it presents a non-consentable material limitation.
7 Resolution of this conflict is impacted by the issue of judicial disqualification discussed in this Opinion.
8 Disclosure of the representation of a client to another client to obtain the latter's consent under Rule 1.7 is governed by MRPC 1.6, which would require consent of the first client to that disclosure. There is no inherent right to disclose the information of the representation merely because the lawyer wishes to resolve the conflict.
9 MRPC 1.6. Michigan's current rule forbids disclosure of confidences and secrets, unless the protected client consents. If the fact of representation of the judge is not a confidence or secret, then that information may be disclosed under the conditions of the Rule. Under proposed MRPC 1.6 (as published in Order ADM 2003-62 of the Michigan Supreme Court, July 2, 2004), the prohibition would apply to disclosure of "information pertaining to the representation of the client", a much broader scope of that which must be held confidential. There is no exception in the proposed Rule for matters that are generally known.
10 Also to be noted is the apparent effort to shift to opposing counsel the burden of moving to disqualify.
11 The Committee is guided by the analysis and conclusion in ABA Formal Opinion 07-449 that continued participation in the case constitutes "assistance" through passive conduct - silence. We do not by this Opinion conclude that if opposing counsel is aware independently of the representation by the judge's lawyer and the unaddressed subject of judicial disqualification, she as well as the judge's lawyer would violate MRPC 8.4(e) by continuing the matter. Opposing counsel clearly is required to discuss the matter with her client. See MRPC 1.4.
12 MRPC 1.16(a) mandates withdrawal from representation that results in a violation of the Rules of Professional Conduct. Nevertheless, such a withdrawal remains subject to the order of the court to continue the representation as provided in MRPC 1.16(c). The potential exists for the lawyer to be forced to continue in the matter regardless of the violation, thereby exposing the non-judicial client's matter to later objection and appeal based on the unresolved issue of disqualification, and thus causing disservice to the non-judicial client. This potential should be a consideration in a lawyer's decision to accept representations in which these circumstances may exist.