This opinion was rescinded by the Standing Committee on Professional Ethics on May 3, 2013. It has been replaced by RI-361 adopted on May 3, 2013.
June 18, 1990
A lawyer may not appear as an advocate in a proceeding before a judge who seeks reelection when the lawyer is an announced candidate for that judge's seat in the forthcoming election.
References: MRPC 1.7(b), 1.11(c), 3.2, 8.2(b), 8.4(c); RI-11; JI-23.
A prosecuting attorney has filed a motion for disqualification of the judge in a criminal matter. Other than the fact that the prosecuting attorney has announced candidacy for the judge's seat, there appears to be no other basis for the disqualification of the judge. There are two other circuit court judges on the bench and the prosecutor has a staff of ten assistant prosecutors. In addition, an assistant prosecutor had conducted the prosecution of the matter up until the time the prosecutor/candidate brought this motion indicating plans to personally try the criminal defendant.
The judge seeks clarification of the ethical duties of the judge and the prosecutor in such a situation.
In JI-23 we held that a judge is automatically disqualified from presiding over a case or proceeding in which one of the lawyers is an announced candidate for that judge's position in a forthcoming election. The Committee noted the potential for abuse, the public perception that rulings from the bench are colored by the election, and the probability of bias sufficient to create the appearance of impropriety.
This duty is not unique nor exclusive to the presiding judge, but is shared by the lawyer/opposing candidate. MRPC 8.2(b) states: "A lawyer who is a candidate for judicial office shall comply with all the applicable provisions of the Code of Judicial Conduct." To the extent that it is appropriate for the presiding judge to avoid cases in which a campaign opponent appears, so too must the campaign opponent refrain from accepting assignments which result in appearances before the judge.
In this case there appears to be no ground for disqualification of the judge other than the fact that the prosecutor is seeking the judge's seat. Further, the prosecutor had not in the past personally handled the matter in which disqualification of the judge is sought. Third, the prosecutor has ten assistant prosecutors available to handle the matter in the prosecutor's stead. MRPC 1.7(b) requires a lawyer to decline representation of a client when the representation would be materially limited by the lawyer's own interests. A waiver from the prosecutor's "client" i.e., the public, is not realistic. It is not furthering the interests of the prosecutor's client or the administration of justice for the prosecutor to insist on participating in the cases before the campaign opponent solely for personal reasons.
MRPC 8.4(c) states it is professional misconduct for a lawyer to engage in conduct which is prejudicial to the administration of justice. To determine if the administration of justice is prejudiced a number of elements must be considered. Paramount is the prejudice to the criminal defendants which would be caused by the delay in the requisite reassigning of the case to a different judge, and the corresponding prejudice to the prosecutor's "client" i.e., the public, in delaying the trials of those accused of criminal conduct. Also, since the prosecuting attorney has discretion to make case assignments of the prosecutors, motions for disqualification of the judicial campaign opponent would cause the normal case load flow of all the circuit court judges to be affected, especially in light of the already widely known, over-loaded judicial docket in Michigan. The prosecutor is required to make reasonable efforts to expedite litigation consistent with the interests of the prosecutor's client, MRPC 3.2, and may not allow the prosecutor's personal interests to interfere with that duty.
In RI-11 we discussed the responsibilities of an administrative law judge who wished to negotiate future employment with a law firm which had matters pending before the administrative law judge. The ALJ asked whether he could withdraw from matters pending with the concurrence of the parties, and allow another adjudicator to preside. We found such an alternative to be conduct prejudicial to the administration of justice, stating "Requiring another adjudicator to become familiar with the matter, to gain the confidence of the parties and their attorney, and to step into such a "limbo" situation merely for the ALJ's personal employment desires would be contrary to the ALJ's duties of office." The converse is also true; to seek disqualification of the presiding judge when such disqualification can be avoided by the assignment of another prosecutor in the office, and when the motion is solely for the personal interest of the prosecutor in the judge's seat, would be contrary to the prosecutor's duties of office.
Government lawyers are sometimes allowed more latitude in handling conflicts which arise in the course of their public duties. For instance, where under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in a matter, a lawyer serving as public officer or employee may participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, MRPC 1.11(c)(1). Even this limited exception to the prosecutor's participation is inapplicable; since this prosecutor has ten assistants, there are others available to serve in the prosecutor's stead.
Therefore, a lawyer may not appear as an advocate in a proceeding before a judge who seeks reelection when the lawyer is an announced candidate for that judge's seat in a forthcoming election.